One of the most perplexing problems in private law is when and how to compensate victims for emotional harm. This article proposes a novel way to accomplish this remedial goal – a restoration measure of damages. It solves the two fundamental problems of compensation for emotional harm – measurement and verification. Instead of measuring the emotional harm and awarding the aggrieved party money damages, the article proposes that damages be paid to directly restore the underlying interest, the impairment of which led to the emotional harm. And to solve the problem of verification – compensating only those who truly suffered the emotional harm – the article develops a sorting mechanism that separates sincere claimants from fakers, awarding the restoration measure of damages only to account for the harm suffered by the former class. The article demonstrates how the proposed restoration remedy would apply in important cases, and discusses its relevance to additional remedial challenges in private law.
Ben-Shahar, Omri and Porat, Ariel, The Restoration Remedy in Private Law: A Novel Approach to Compensation for Emotional Harm (October 24, 2017).