Moral Damage in Jordanian Legislation: The Problem of Scope and Compensation

Moral Damage in Jordanian Legislation: The Problem of Scope and Compensation

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Abstract

This article examines the concept of moral damage under Jordanian legislation, exploring its constituent elements, conditions, and the various cases recognised across different Jordanian statutes. It attempts to identify a coherent framework for classifying those cases, while also addressing the scope of compensation available for such damage, the types of compensation recognised, and the methodologies adopted by the Jordanian legislature in assessing compensation for moral harm. The article further identifies existing shortcomings in current legislation and the legal gaps they produce. The author proposes a supplementary reference tool to assist judges in determining the severity of psychological suffering and its various dimensions.[1]

I. Introduction

Modern legislation has accorded great importance to human rights. The societies that emerged from the two World Wars recognised the scale of the violations that human beings could inflict upon one another under unjust or biased legal systems — a realisation that exposed the urgent need to strengthen legal protection for fundamental human rights, chief among them the right to life, dignity, and physical integrity.

It is from this premise that the present article proceeds. It addresses one of the mechanisms for protecting these rights — in particular those relating to moral reputation and standing — namely, compensation for moral damage under Jordanian civil law.

The harms that may befall a person are divided into two principal categories: material harm, which affects a person’s financial patrimony and leads to its impoverishment, and moral or non-material harm, which affects a person’s dignity or reputation. The eminent jurist Al-Sanhuri defined both categories as follows: “Material damage is the harm resulting from assault upon a person’s body or property and is the most common form; moral damage, by contrast, is the harm resulting from an assault upon a person’s feelings, emotions, dignity, honour, or any other value that people hold dear.”[2]

This definition aligns closely with what the Jordanian legislature established in Article 267 of the Civil Code, which provides that “any transgression against another person’s liberty, honour, dignity, reputation, social standing, or financial standing shall render the transgressor liable for compensation.” A comparable provision appears in Article 205 of the Iraqi Civil Code,[3] reflecting a settled legislative and scholarly consensus on the definition of moral damage. However, this consensus does not extend to the question of compensation — and it is precisely this gap that the present article seeks to address.

II. Importance and Objectives of the Study

This study addresses the problem of compensation for moral damage by examining how such compensation is assessed and how entitlement to it is established. It aims to clarify the Jordanian legislature’s position on this question and to evaluate the adequacy and clarity of existing provisions. The article concludes with a set of recommendations to remedy identified legislative deficiencies, drawing on modern tools and insights from psychology.

III. Statement of the Problem

The central problem of this study lies in the lack of clarity in the Jordanian legislature’s position on how to assess compensation for moral damage, compounded by the absence of fixed and clearly defined criteria upon which such assessment can be grounded.

IV. Research Questions

This study poses several principal questions:

• How effective are the Jordanian legislative provisions relating to compensation for moral damage?
• What modern methodologies can be employed to assess such compensation?
• To what extent do these methodologies achieve justice for the injured party?
• What cases and approaches has the legislature adopted in compensating this type of damage?

V. Methodology

This study adopts a descriptive-analytical methodology, comprising an inductive review of the relevant legal texts, an analysis of doctrinal opinions and judicial decisions — both settled and disputed — and a comparative examination of the results to reach the study’s intended conclusions.

VI. Structure of the Article

This article is divided into three sections. The first examines the legislative and judicial approach to compensation for moral damage, covering the elements of tortious liability, the time at which the right to compensation arises, the types of moral damage recognised under Jordanian law, and the available methods of compensation — with reference to selected judicial applications and notable cases from Jordanian and Arab statutes and judgments.

The second section addresses the deficiencies of the current legal framework.

The third and final section proposes modern solutions to remedy these legislative shortcomings. These three sections are followed by the study’s conclusions and recommendations.

Section One: The Jordanian Legislature’s Approach and Judicial Consistency

Subsection One: Elements of Tortious Liability

First: The Harmful Act

Article 265 of the Jordanian Civil Code expressly provides that “any harm caused to another shall render the actor — even if lacking legal capacity — liable for compensation.” Harm may be caused either by a positive act that causes material or moral injury to another, or by an omission, where such omission results in harm to another party.

To illustrate: the first case is exemplified by a person who unlawfully demolishes another’s house — a positive act causing harm to another. The second case is illustrated by a driver who fails to observe traffic rules, causing a collision and resulting damage.

Notably, unlike certain other legal systems such as the Egyptian Civil Code, the Jordanian legislature does not require that the actor possess legal capacity (tamyiz) as a condition for liability.[4]

Harm may also be caused either directly or indirectly. The Jordanian Civil Code addresses this in Articles 257 and 258, which provide: “First: harm may be caused either directly or indirectly. Second: where harm is caused directly, compensation is owed without any additional condition; where it is caused indirectly, wrongful intent, wilfulness, or foreseeability of the harmful outcome is additionally required.” The Code further provides: “Where both a direct and an indirect actor are present, liability attaches to the direct actor.”

Second: The Damage

Damage is the injury suffered by the claimant. The Jordanian legislature requires that several conditions be satisfied:

First: The damage must be certain — that is, it must already have occurred or its occurrence must be beyond doubt. Mere speculative or unconfirmed loss is insufficient; certainty requires that the loss be a foreseeable and natural consequence of the harmful act.

Second: The damage — whether already suffered or certain to be suffered — must be a direct consequence of the harmful act, such that the act is the primary cause of the result. Liability does not arise unless it is established that the damage resulted from the act in the ordinary course of events and without the intervention of any extraneous cause.

Third: The damage must affect a legitimate interest. Compensation is not available for harm suffered in the course of unlawful activities.

Third: Causation

Causation is the final element of tortious liability. Liability does not arise unless a causal link exists between the harmful act and the resulting damage — that is, no other factor or extraneous cause must have intervened to produce a result different from what would naturally flow from the harmful act.

Having examined the elements of tortious liability and the conditions necessary for the right to compensation to arise, we turn to the question of when that right accrues under Jordanian law.

Subsection Two: Time of Accrual of the Right to Compensation

According to the collected decisions of the Jordanian Court of Cassation and the settled position of legal doctrine and the judiciary, a judicial judgment is declaratory of a right, not constitutive of it. Accordingly, a judgment awarding compensation for damage declares the pre-existing right rather than creating it.

Compensation is therefore assessed by reference to the damage as it existed at the time of the harmful act — not at the date of the court’s judgment or the date on which that judgment became final. This position differs from certain schools of legal thought that calculate compensation at the time of judgment.[5]

The two preceding subsections have laid the groundwork for the core subject of this article — compensation for moral damage — by surveying the general rules governing the establishment of liability and the accrual of the right to compensation for both material and moral harm. We now turn to examine the Jordanian legislature’s approach to classifying the types of moral damage and the compensation mechanisms available for each.

Subsection Three: Types of Moral Damage under Jordanian Legislation

Under Jordanian law, harms arising from physical injury are divided into fatal and non-fatal injuries.

Fatal injuries give rise to moral damage that may be claimed in the name of the deceased’s estate, bringing into play the rules of succession. Under Court of Cassation judgment No. 3368/2017 (Civil), compensation for moral damage does not form part of the estate, because it did not exist during the deceased’s lifetime; each claimant is instead compensated in proportion to the harm personally suffered by them. This ruling, however, conflicts with another Court of Cassation decision, which held:

“In cases of death of the injured party, a distinction must be drawn in compensating moral damage: on the one hand, personal compensation owed to the deceased’s relatives for their own grief, and on the other, compensation owed to the deceased himself before death — the right to claim which passes to the heirs by succession. The compensation payable to relatives is intended to redress the pain they experience as a result of the deceased’s death. For this reason, the judge may award compensation not only to relatives but also to spouses, having regard to the family’s circumstances and identifying those members who have suffered most acutely — those who genuinely mourn the deceased rather than merely seeking financial gain. The judge may not, however, award moral compensation to a mere friend of the deceased.”[6]

As to the personal nature of compensation for moral damage, this is a foundational principle: psychological suffering affects only the person directly harmed and does not pass to others except in specified circumstances. The right to moral damage compensation transfers to third parties in only two cases: first, where the amount has been agreed between the injured party and the person responsible; and second, where the injured party has initiated legal proceedings and a final, non-appealable judgment has been issued.[7]

Egyptian law grants the right to claim compensation for psychological harm suffered by third parties as a result of the death of a loved one to relatives up to the second degree, leaving to the judge’s discretion the identification of those actually affected according to the degree of kinship.

The Jordanian Court of Cassation, by contrast, held in Decision No. 2142/2002 (Civil) that moral damage compensation of a parental nature is available only in cases of death. Iraqi law grants this right to spouses and children under Article 203, while Article 276(2) of the Jordanian Civil Code permits the court to award compensation to a spouse and family relatives for the moral damage they suffer as a result of the victim’s death.

With regard to the materiality of fatal physical injuries: the Jordanian legislature’s position is that death itself does not constitute material damage, since it has no impact on the deceased’s financial patrimony. Compensation is therefore limited to moral damage subject to the conditions discussed above.

Non-fatal physical injuries may give rise to both material damage — comprising actual loss and loss of earnings — and moral damage. The latter is divided into objective harm, which affects all persons equally, and subjective harm, which varies from person to person.

First: Objective Moral Harm

This category encompasses physical pain suffered by the claimant as a result of the harmful act, as well as aesthetic damage to parts of the claimant’s body that diminishes their physical attributes. This type of harm is particularly significant for persons whose physical appearance is a source of livelihood — such as actors, models, and the like.

A third form of objective moral harm is the deprivation of life’s pleasures (préjudice d’agrément). Doctrine and case law have consistently recognised compensation for this form of harm without requiring the claimant to prove it, as it is presumed by virtue of the nature of the injury. It is assessed by reference to the reasonable person standard, unless the claimant possesses particular characteristics that render them more susceptible to harm than the ordinary person.

Second: Subjective Moral Harm

This category consists of harms that vary in degree from person to person and is represented by psychological suffering. Legal scholars have disagreed on the permissibility of compensation for this type of harm, given the difficulty of its assessment and the fact that a person’s emotions cannot be reduced to a fixed monetary value — a process that may intrude upon the individual’s privacy and unique inner experience.

Subsection Four: Types of Compensation for Moral Damage under the Jordanian Civil Code

Doctrine and case law had long questioned whether courts could award compensation for moral damage, on the ground that monetary awards do not erase such harm. The Court of Cassation, in Judgment No. 2817/2013, affirmed that moral damage is understood by convention not to accrue to legal persons (juridical entities) — a position that raises substantial controversy requiring legislative attention.

The Jordanian legislature has divided compensation for moral damage into two types: monetary compensation and non-monetary compensation.

First: Monetary Compensation

Monetary compensation is assessed either by lump-sum amounts or by expert opinion.

1. Lump-Sum Amounts

Certain Jordanian statutes fix specific amounts for the compensation of moral damage, recognising them within the framework of insurance regulation. Examples include:

• Article 5 of the Stem Cell Storage Insurance Instructions of 2014, which stipulates that the insurance company’s liability for moral damage — comprising the psychological and emotional suffering caused to the insured by the total or partial loss or damage of stored stem cells, without requiring direct proof of such harm — shall not be less than five thousand Jordanian dinars.

• Article 3 of the Motor Vehicle Insurance Liability Instructions of 2010, which fixes specific amounts for moral damage: three thousand dinars per person for permanent total or partial disability, and three thousand dinars payable to the legal heirs up to the second degree in cases of death.

It is notable that the legislature has prescribed fixed amounts for compensation arising from death, total or partial loss of stem cells, or related harm, without delegating assessment to the judge’s discretionary authority as is ordinarily the case.[8]

2. Expert-Based Assessment

Courts may rely on a report by a qualified expert to assess the appropriate level of compensation in accordance with the severity of the harm. An expert is defined as any person with specialised knowledge, a profession, or experience who is called before a court to provide assistance and advice — not to adjudicate the dispute.

The court accepts the expert’s report within the discretionary powers conferred upon it by Articles 33 and 34 of the Jordanian Evidence and Expertise Law, without review by the Court of Cassation, as confirmed by Article 6(2) of the same law. Case law has established that expert assessment is the principal mechanism for evaluating moral damage: see Court of Cassation decisions No. 1763/2006, No. 3238/2005, No. 1892/2008, and No. 3881/2006. The conditions for the admissibility of expert testimony are governed by Article 85 of the Jordanian Code of Civil Procedure.[9]

Examples of Legislative Application in Jordan:

• Article 365 of the Jordanian Penal Code: recognises moral damage in cases of blood crimes and investigation, leaving final assessment to the judge.
• Article 260 of the same Code: recognises moral damage in cases of forgery.
• Anti-Human Trafficking Law No. 9 of 2009, Article 12: requires the provision of lawful means for victims to obtain fair compensation for both material and moral harm.
• Court of Cassation decisions: recognition of moral damage in cases of marital infidelity, as in Judgment No. 243/2023.[10]

Although the statutes provide for compensation for moral damage, leaving the matter entirely to the discretion of the expert and the judge — without a clear standard — creates a legislative gap that allows compensation amounts to fluctuate arbitrarily. This underscores the need for a clear legal and psychological methodology for assessing moral damage.

Second: Non-Monetary Compensation (Rehabilitation of Reputation)

Non-monetary compensation consists of the rehabilitation of the injured party’s reputation. It may take the form of a formal apology or a public clarification on social media platforms, with the aim of restoring the claimant’s dignity and standing — without any accompanying financial payment.

Example: If a person publishes a defamatory rumour on their personal social media account, the court may order them to publish a formal apology on the same account. Such an apology constitutes non-monetary compensation for moral damage, as it seeks to restore the claimant’s reputation and social standing and serves as an instrument of rehabilitation without financial payment. [Note: The original Arabic text appears to be incomplete at this point; the final sentence is truncated. The author’s intent has been preserved as closely as possible.]

Section Two: Shortcomings of the Current Legal Framework

One of the most significant criticisms of the current approach to assessing compensation for moral damage is its indeterminate scope. As discussed in the preceding section, court decisions sometimes contradict one another on whether moral damage even exists in a given case, while other statutes recognise its existence but do not establish liability frameworks for its compensation. This creates a substantial legislative gap and opens the door to debate over the finest details of the issue.

We also observe the absence of a single, clear standard for assessing compensation for moral damage. The existence of such a standard would clarify the methodology the legislature uses to determine the compensation amounts — amounts that are sometimes imprecisely defined despite being a matter of public policy (ordre public) that cannot be contracted around, as illustrated in the discussion of lump-sum compensation above.

As for the alternative approach — reliance on expert opinion and the judge’s discretionary authority — the excessive breadth of that discretion, combined with the lack of sufficient reference sources to assist judges in determining amounts that truly correspond to the harm suffered, renders the judge’s task extraordinarily difficult, if not effectively impossible, to perform without error.

Furthermore, the settled convention that moral damage compensation is unavailable to legal persons (juridical entities), as described by the Court of Cassation, itself raises a significant problem. Legal persons are equally susceptible to moral harm when defamation damages their reputation, standing, or social position — a matter that demands prompt and transparent legislative action.

Finally, despite the fact that moral damage is fundamentally a form of psychological harm, judicial reasoning and legislative texts have paid little attention to studying the diverse dimensions of psychological impact on the injured party. The role of psychological assessment has been conspicuously weakened — an assessment that may well offer an excellent basis for identifying the harmful consequences suffered by the claimant.

Having surveyed the shortcomings of the current approach to compensating this type of harm, we now offer our proposals for addressing these legislative gaps, drawing on psychology and modern methodologies.

Section Three: Proposed Solutions and Recommendations

Although it is not possible to subject moral damage to a rigid numerical scale, the legislature should seek supplementary reference sources to assist judges in reaching more precise and transparent assessments. Modern tools offer significant promise in this regard.

One proposal worth serious consideration is the automation of aspects of the compensation assessment process through the use of artificial intelligence models specifically designed to evaluate psychological condition indicators and the multiple dimensions of harm. The use of AI models offers enormous savings in the time and effort currently expended by courts in arriving at estimated compensation figures. Moreover, AI’s capacity to store, compare, and analyse legislative texts and judicial decisions in their entirety — through pattern recognition and the identification of distinguishing characteristics — enables the creation of an optimal classification of cases and the corresponding estimated compensation amounts as precise arithmetic averages. It also promotes standardisation of the assessment criteria applied, thereby limiting judicial discretionary authority and ensuring that judgments are reasoned on clear and transparent foundations.[11]

In this connection, the author proposes the use of the DASS-21 (Depression, Anxiety and Stress Scales) model. This is a brief psychological questionnaire — administered to the injured party under court supervision — comprising 21 questions that measure three independent psychological dimensions: depression, anxiety, and psychological stress. It is the instrument that psychological experts have consistently praised for its effectiveness and accuracy in characterising the severity of suffering, through the measurement of pain levels and their duration by means of targeted questions put to the claimant.

Conclusion

This article has demonstrated that moral damage has become a contested issue in civil courts worldwide, particularly with respect to assessing compensation amounts. While vesting discretionary authority in the judge for this purpose is a necessity, releasing that authority without objective foundations has placed an undue burden on judges and created a gap that many have exploited. This article has accordingly sought to propose a model as a supplementary reference tool for adjudicating compensation claims, after surveying the legislature’s current methodology and examining a broad range of related cases.

Recommendations

1. Establish clear and reasoned criteria for measuring the extent of moral damage suffered by individuals.
2. Make greater use of psychological expert assessments provided by qualified physicians.
3. Draw on artificial intelligence models to characterise the severity of the harm suffered by the claimant.
4. Promote stability and consistency in legislation and judicial reasoning to prevent contradictions.
5. Close the legislative gaps relating to compensation for moral damage suffered by legal persons (juridical entities).

References

[1] Wala’ Abd al-Mun’im and Prof. May Mashhour Al-Jazi, The Position of the Jordanian Legislature on Assessing Compensation for Moral Damage: A Study.
[2] Abd al-Razzaq Al-Sanhuri, Al-Wasit fi Sharh al-Qanun al-Madani [The Intermediate Commentary on Civil Law].
[3] Iraqi Civil Code No. 40 of 1951, Art. 205.
[4] Jordanian Civil Code No. 43 of 1976, Arts. 257, 258, 265 [Note: The bibliography lists this as 1943; the Jordanian Civil Code was enacted in 1976 — please verify].
[5] Collected Decisions of the Jordanian Court of Cassation (Civil).
[6] Jordanian Court of Cassation, Civil Decision No. 3368/2017; cf. the conflicting decision cited in the article regarding the rights of heirs and spouses.
[7] Dhikra Abd Al-Ali, Compensation for Moral Damage in Tortious Liability: A Comparative Study.
[8] Stem Cell Storage Insurance Instructions of 2014, Art. 5; Motor Vehicle Insurance Liability Instructions of 2010, Art. 3.
[9] Jordanian Code of Civil Procedure No. 24 of 1988, Art. 85; Jordanian Evidence and Expertise Law, Arts. 33, 34, 6(2). Court of Cassation decisions: No. 1763/2006, No. 3238/2005, No. 1892/2008, No. 3881/2006.
[10] Jordanian Penal Code, Arts. 260, 365; Anti-Human Trafficking Law No. 9 of 2009, Art. 12; Court of Cassation Civil Decision No. 243/2023; Jordanian Civil Code, Art. 276(2); Explanatory Memorandum to the Jordanian Civil Code (published by the Jordan Bar Association); Mandatory Motor Vehicle Insurance Regulations No. 29 of 1985; Motor Vehicle Parking Insurance Policy Instructions of 2018.
[11] DASS-21 (Depression, Anxiety and Stress Scales) — validated psychological instrument; Qistas (Jordanian Legal Database); OpenAI, ChatGPT (large language model), https://chatgpt.com [Note: if AI tools were used as a research aid, the specific use and version should be disclosed in accordance with applicable academic integrity guidelines].