La cuantificación del daño como aporía infinita en supuestos de responsabilidad. Comentario a la STS 17 de mayo 2019 (RJ 2019, 269)

Zusammenfassung

It gives the impression that, apart from the existence of unitary positions and theories for the approach of solutions related to civil responsibility, we are facing an issue that has to raise a deep debate around conceptual delimitations. If we start from the hypothesis that the protection of compensation is activated in cases where there has been a civil damage to legitimate interests, we cannot leave at the intuition of the specific moment the denotation of what is to be understood as civil damage or definition of what is to be understood as legitimate interest. It is true that a closed concept of harm has not been elaborated in Spanish doctrine or jurisprudence (and it has been said for a long time since it is impossible to achieve it); and it is neither a problem socially attributable to jurists, nor a reproach out of tune. Yes, there seems to be a detection of the difficulty involved in a possible "static denotation" of the concept of damage, since there is a feeling that it would then be immediately overcome. In truth, and together with the conceptual difficulties reflected, there are also concomitant, inescisible problems, linked to the reality of the establishment of a possible guardianship to compensate for the damage caused to a legitimate interest.