HAS THE VICTIM OF AN TORT OF CONTRACTUAL ILLEGAL BURDEN OF MITIGATING YOUR OWN LOSSES?

Abstract

In this work, the author addresses the rule of non-compensation of avoidable damages sustained by the victim of a tort. The rule establishing the burden to mitigate is derived from the abuse of rights, in its objective aspect, finding a more remote foundation in the principle of objective good faith. In terms of statutory law, the mitigation rule is therefore derived from art. 187 of the Civil Code. The author also analyzes the possible grounds for limiting compensation to unavoidable damages in art. 403 of the Civil Code and, therefore, in the absence of causality between the tortious act and the part of the damage that the victim could have avoided. This legal basis, however, is refuted because it does not cover all cases in which the burden of mitigation is applied and because it does not bring to the analysis an axiological assessment of the victim's conduct when avoiding damages or not. Only by basing the burden of mitigation on good faith would it be possible, in the analysis of the victim's conduct, to compare it with socially expected and accepted standards.