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Hastings International and Comparative Law Review

Abstract

In February 2014, the Supreme Court of Mexico, referring to some American cases and scholarly articles, held that punitive damages must be awarded to a tort plaintiff as part of the indemnity afforded by Mexican law under the head of moral damages (daños morales). Before this landmark decision, punitive damages were unknown to the Mexican legal system. The authors submit that the legal transplant carried out in Mexico has a few problems, which concern both the incorrect understanding of the adopted rule and the incompatibility of the host legal system. As a consequence, punitive damages, as they stand now in Mexico, will not properly accomplish the function that punitive damages have in the United States, i.e., to effectively and fairly punish tortfeasors and dissuade potential ones, unless some post-transplant adjustment is implemented. In order to demonstrate their hypothesis, the authors apply the functional method of comparative law and the theory of legal transplants, including the criteria developed by prominent comparatists, to determine the likelihood of success transplanting punitive damages in Mexico.

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