Abstract

SUESCUN DE ROA, Felipe. MITIGATION OF DAMAGES IN CONTRACTUAL ISSUES. Vniversitas [online]. 2018, n.136, pp.156-178. ISSN 0041-9060.  https://doi.org/10.11144/javeriana.vj136.mdmc.

Comprehensive reparation is a principle established in the Colombian legislation. There are some legal concepts such as direct damages and victim blaming that restricts the application of the said principle. Although the mitigation of damages is clearly related to those concepts, it is no less true that there are reasons –under an ethical, social, legal, and economic viewpoint– justifying its existence as an independent principle. This norm, which stems from a behavioral secondary duty subject to the objective goof faith in Colombia, implies that an affected creditor must make the reasonable efforts to mitigate the loss caused by any non-compliance. If a creditor does not make such efforts, the debtor can request a reduction in the indemnity amount. The logic underlying this norm is to try to dissuade the creditor from taking a passive attitude leading to an increase in the loss, without seeing affected the receivable indemnity. To that end, on one hand, the mitigation does not allow the affected creditor to be paid for damages he/she could have prevented. On the other hand, it provides to opportunity to recover any expenses he/she might incur when trying to reduce the loss.

Keywords : duty of mitigation; damages; contracts; causation; direct and consequential damages; creditor’s guilt; indemnifiable loss; civil contractual liability; compensatory damages.

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