Short answer. Yes. Temperate damages — more than nominal but less than compensatory — may be recovered where the court finds that some pecuniary loss was suffered but its amount cannot, from the nature of the case, be established with certainty. The loss itself still has to be shown; only its precise size may remain uncertain.

What the law says

Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty.

Civil Code, Article 2224 — Temperate Damages Defined. Read the full provision →

What the law says

Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

Civil Code, Article 2199 — Actual Damages Must Be Proved. Read the full provision →

Two conditions, and both must be met

The provision reads: temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be provided with certainty. The court must find that a pecuniary loss was in fact suffered, and that its amount is not susceptible of certain proof. Neither condition is presumed. A claimant who cannot show that any loss occurred is not in this article at all, and belongs instead in the territory of nominal damages under Article 2221.

The uncertainty must come from the nature of the case

This phrase is the one that decides most disputes about temperate damages, and it is routinely overlooked. The article contemplates a loss whose amount is inherently difficult to fix — the earnings of a business kept without books, the value of something destroyed for which no market price exists, a period of lost custom. It is not a fallback for a claimant who could have proved the figure and simply did not keep the receipts. If the amount was capable of being documented, the failure to document it is not an uncertainty arising from the nature of the case.

Where it sits between the two extremes

Article 2199 sets the ordinary rule: except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Temperate damages are the Code's answer to the injustice that rule would otherwise produce in cases where the loss is real but unquantifiable. Article 2216 completes the picture by dispensing with proof of pecuniary loss for temperate awards and leaving the assessment to the court's discretion according to the circumstances of each case.

How to give the court something to work with

Even a temperate award needs a foundation, and the stronger the picture of the loss, the less moderate the moderate figure tends to be. Assemble whatever indirectly evidences the scale: the pattern of earnings before and after, comparable costs, photographs of what was damaged, the period over which the disruption ran, and the accounts of people who dealt with you commercially. Say plainly why an exact figure cannot be produced. A claim that explains its own uncertainty reads very differently from one that simply lacks proof.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.