It is deeply ingrained in the public consciousness that a person who suffers a legal injury is entitled not only to compensation for the actual, typically quantifiable pecuniary damage incurred but may also be entitled to non-pecuniary damages.
However, if we were to open the current Civil Code — effective since March 15, 2014 — on a sleepless night to look up the rules on non-pecuniary damages, we would be surprised to find that the law does not mention a single word about it, as if this concept were unknown to the corpus juris. Moreover, this "problem" is not new; the institution of non-pecuniary damages has not been included even in the old Civil Code, at least since 1993. However, the current Civil Code does contain something that the previous law did not: the concept of sérelemdíj (pain and suffering compensation), which apparently has nothing to do with compensation, as structurally it is not even part of the compensation system — in fact, it is not even found in the Sixth Book of the Civil Code, which covers the law of obligations including compensation — but rather in the Second Book entitled The Human Being as a Legal Subject. So, does non-pecuniary compensation exist in civil law or not? And, after all, what exactly is sérelemdíj?
To understand the situation, it is worth turning back to the past, when the concept of non-pecuniary damages was regulated in a normative manner — that is, explicitly codified in the law — which was as follows:
Old Civil Code, Section 354: The injuring party is obliged to compensate the injured party for non-pecuniary damage if the injury permanently or seriously hinders the injured party’s participation in social life or otherwise their life, or adversely affects a legal entity’s participation in economic activity.
(This provision was in force from March 1, 1978, to May 31, 1992.)
The above definition clearly established that non-pecuniary damage is the “damage” which manifests itself in a fact that permanently or seriously hinders the injured party’s life (e.g., disability resulting from an accident), in a circumstance that makes participation in social life difficult (e.g., negative public opinion caused by damage to reputation), or in an effect that adversely affects a legal entity’s participation in economic activity (e.g., general rejection of the company or its products due to some false rumor related to the company). But what was the problem with this definition after all?
Well, the problem is that in the above cases, we cannot really speak of damage, since non-pecuniary harm cannot be expressed in monetary terms, so the institution of non-pecuniary compensation within the law of damages is not really applicable. The basis of unlawfulness in these cases is not the damage caused, but rather the violation of some personal right; that is, if we are injured in a traffic accident, regarding our bodily injury, we do not actually suffer “damage” in the strict sense of the term, but rather our personality right – our bodily integrity – is violated, and because of this violation of our personal right, we become entitled to some form of compensation.
So far, so good — but what should we call that compensation which cannot be interpreted as damage, yet there is a common need to claim it? Yes, you guessed it right: this is what we call sérelmdíj (injury fee/compensation for non-pecuniary damage).
Thus, the sérelemdíj is nothing other than the consequence of a violation of personal rights — a compensation for non-pecuniary harm.
Okay, but do I, as an ordinary citizen seeking to enforce my rights, really need to concern myself with these legal subtleties?
Absolutely not. On the one hand, the law itself states that the rules on liability for damages largely apply to the conditions for ordering the payment of sérelemdíj — especially concerning the identification of the liable party and the possibility of exemption. On the other hand, our lawyer will certainly understand if we want to enforce our claim for non-pecuniary damage and will correctly apply the rules on sérelemdíj during legal representation. They will also keep in mind — as emphasized by the Curia (Hungary’s Supreme Court) — that compared to non-pecuniary damages, sérelemdíj serves multiple purposes: beyond compensation, it also functions as punitive damages and has a preventive role.
Dr. Attila Megyesi, specialist in compensation law, attorney, Dr. Megyesi Law Office