-“Nemo auditur propriam turpitudinem allegans”-No one can claim their own clumsiness in their favor.

By: Feridee Alabi, Litigation Manager

falabi@romeropineda.com

“Nemo auditur propriam turpitudinem allegans” is a universal principle of law according to which no person can claim their own guilt in their favor, because their actions and consequences are their responsibility. If we do something wrong and we are guilty of it, we cannot benefit from that situation and therefore we will have to assume the consequences of our actions.

When a person has been negligent, reckless or has acted deliberately and this results in harm to them, they cannot try to take advantage of it, or claim to be compensated when they themselves have been guilty of the negative result.

This principle is applicable to all branches of Law, since the protection action is inadmissible when the unfavorable events have been generated by the interested party himself. It is not possible to allege your own fault, your own clumsiness or ignorance or your fraud. It is a general principle of law that prohibits taking advantage of one's own guilt in one's favor.

Next, we present a real case that fully represents this principle and that demonstrates that no one can be used of their own fraud or clumsiness and illegality to exercise jurisdictional jurisdiction.

This real case is a Declaration Process for Material and Moral Damages that has lasted three years and in which, after exhausting all avenues, justice has finally triumphed.

Our client COPA AIRLINES was sued by a passenger who was not allowed to board on the date of her flight. Her claim sought the declaration of non-contractual liability and compensation for material and moral damages. It should be noted that the flight purchased by the passenger was an interline flight with a ticket belonging to another airline; COPA AIRLINES would only operate the first leg of the itinerary. 

Boarding was not allowed because the passenger at the time of purchasing the ticket in a virtual travel agency entered his name incorrectly, the ticket was issued with an incorrect name. The passenger was informed of this situation by COPA AIRLINES staff at the time of the pre-check, one day before her trip, and was recommended to resolve the error with her travel agency or with the airline that owned the ticket. Ignoring this recommendation, the passenger showed up on the day of her flight and when checking in at the COPA AIRLINES counter, she was not allowed to board due to non-compliance with immigration requirements as the name on the ticket did not match the name on the ticket. of your passport.

The aforementioned passenger, trying to take advantage of her error (which she recognized judicially), sued COPA AIRLINES alleging extracontractual liability, supposedly caused by the unjustified non-boarding and the alleged lack of assistance, on the part of the airline for not solving the error in her name, a situation that was not possible for COPA AIRLINES because the ticket belonged to another airline, and it was this airline or the intermediary agency that sold the ticket, who could correct the error made by the same passenger when making the online purchase. Furthermore, the plaintiff sought to obtain payment for alleged material damages for the expenses she incurred in acquiring new tickets to reach her destination and for those generated by the new connections, in addition to compensation for moral damage for the alleged suffering that this situation caused him.

The process was exhausted in the first instance, issuing a ruling that declared the action for material damages in favor of COPA AIRLINES time-barred, but granted the alleged moral damages requested by the plaintiff, condemning COPA AIRLINES to pay the amount claimed in that regard. Not satisfied with the sentence, both parties appealed the decision. The judge in the first instance made an evidently arbitrary evaluation of the evidence in favor of the plaintiff, taking as proven the alleged suffering that the non-boarding and the alleged lack of assistance from the airline caused her; but omitting to verify the causal link that must exist between the damage and loss claimed, a necessary element for compensation to be granted for damages, whether material or moral.

It is worth highlighting the assessment that the first instance judge made regarding the error in the name made by the plaintiff herself: considered it irrelevant because it addresses a common situation such as the user's digital divide, ignoring the fact that it was that specific error that prevented the passenger from boarding and triggered all of her subsequent inconveniences.

In the second instance, the Honorable Civil Chamber ruled in accordance with the law and absolved COPA from paying all compensation because the claim for material and moral damages was not admissible because in the first instance it was demonstrated that the causal link between the damage and the damage It was not attributable to COPA AIRLINES because it was committed by the plaintiff herself.

Incredibly, the plaintiff, acting recklessly, knowing that her claim has no basis and taking advantage of the partiality of the first instance judge, in the meantime of the admission and processing of the appeal, initiated the provisional execution of the first instance ruling by the sentence partially obtained in his favor, referring only to moral damages.

In defense of COPA we opposed the execution since, at the time of its admission, the Honorable Chamber had already issued the sentence revoking the sentence that was intended to be carried out. However, the deadline to file an Appeal for Cassation (before the Supreme Court of Justice) was still running, which was effectively used by the plaintiff, so the judge continued with the provisional execution.

The appeal was admitted for reasons of form, resolving that the Honorable Chamber should expand its assessment of two pieces of evidence provided to the process. Finally, this March 2, the Honorable Civil Chamber issued a ruling again absolving COPA AIRLINES of all the plaintiff's claims, emphasizing that the damages alleged by the plaintiff are not attributable to COPA since they were caused by the plaintiff herself.

The plaintiff who wants to assert his error or clumsiness before the jurisdictional forum, confines his subjective right within the limits, constituting the abuse of right, since his attitude can have no other purpose than Cause damage to others. In this case, the plaintiff's malicious attitude has been evident throughout the process, by carrying out coercive actions to obtain payment of compensation to which she is not entitled. However, with the new ruling of the Honorable Civil Chamber there is no doubt that COPA AIRLINES is exempt from the responsibility that the plaintiff unjustly attempted to attribute to it, demonstrating that “"No one can argue in his favor his own clumsiness."