The Damage of Loss of Opportunity between the Requirements of Compensatory Justice and the Demands of Legal Certainty: A Comparative Study

Abstract

The damage of loss of opportunity is one of the most developed topics in the field of civil liability, as French case law has created through it a legal mechanism that allows compensation for a damage consisting in the loss of a real and serious possibility of obtaining a benefit or avoiding a harm, even though the final outcome cannot be proven with certainty. This damage has contributed to overcoming the traditional difficulties associated with proving the causal link, particularly in cases where the final harm is surrounded by elements of legal uncertainty, since proving causation in the damage of a lost opportunity is more difficult than in other damages because it is not a direct material damage. The study focuses on explaining the legal basis of loss of opportunity in French civil law and analysing the judicial development this damage has witnessed, as well as reviewing its most prominent applications in the medical, professional, contractual and financial fields, while addressing the legal and doctrinal problems it raises, especially those related to assessing the lost opportunity and the limits of its effect on the causal link, and explaining the modern trends calling for its codification and the determination of its legislative controls in a way that achieves a balance between compensatory justice and the requirements of legal certainty.