تحقق الضرر المادي المرتد اللاحق بأفراد عائلة المتضرر : بحث مقارن في القانونين التونسي و الفرنسي

الملخص EN

The entry into the field of tortious act always extends to include the original affected person and his family members or some of them who are affected morally and physically.

In this context, it should be noted that the various legislative experiences do not generally determine the list of the persons who are entitled to compensation for harm by the two types; rather the task is left for the discretionary authority of the judge, who has shown in some interpretations creative thinking which contributed to the approximate determination of the persons deserving compensation for physical subsequent damage.

This compensation includes the deserved benefit resulting from the tort of the aggrieved on one hand, and the second is the expenses which were paid to avoid that act on the other hand.

Based on these two hypotheses, the physical damage affecting the original person and his family members is confined to the jurisprudence of the judge and jurisprudential contributions pursuant to several criteria related mostly to the nature of the legal relationship and the bonds between them and the original person affected by the harmful act.

It is also related to the pledge of the latter to bear the material expenses and to make certain efforts in an attempt to avoid the results of the harmful act, or limit same to improve the material and the physical condition of the original affected person.

Thus, it makes him bear expenses that could have been avoided if the damage did not happen.

Once these criteria are firmly established in jurisprudence, a positive development will be made in investigating the cases of physical subsequent damage without hiding some ambiguities and uncertainties which should be avoided by providing the necessary detailed mechanisms; it is obviously an attempt to unify the contemporary discretionary visions.