ONCE AGAIN, THE DAMAGE: CRITERIA FOR DETERMINING DAMAGE IN CHILE AND THEIR UNDERSTANDING IN JURISPRUDENCE

It is undisputed that harm is the essential element of tort law. Based on this premise, this paper is built showing that the legislature has opted to not define what is harm, while the Chilean literature has not problematized this concept, preferring to build characteristics, or distinguish between different sorts of harms, and then ways to quantify the harm in a pecuniary manner.

But from the philosophy of law and the function of corrective justice, it is necessary to show this paradox that is the main element of tort law is infra problematized to fill it with content, using comparativist and non-comparativist theories, which have been examined in foreign literature to problematize the need of an unique concept of harm nowadays. The goal is to show that litigators and judges will have better tools to confront the harm, specially to address the requirement of motivation that any ruling needs.