De la adevăr la contrafactual pe calea echităţii
From truth to counterfactual on the path of equity

Summary/Abstract: The goal of perfect concordance between objective truth and judicial truth is difficult, sometimes impossible to achieve. Even the legislator accepts the difference between these two hypotheses of truth, especially in cases where the subject of the judgment is a civil liability relationship. In such cases, it is not just a question of establishing past facts and consequences as faithfully as possible on the basis of the evidence, i.e. of capturing their image, as in a mirror, which is a very difficult task, because sometimes the mirror distorts the image. Not infrequently, the damages subject to compensation in civil liability relationships do not allow for pictures that reflect what has happened, but only credible guesses about what might have happened in the past or might happen in the future or reasonable assessments of the chance (probability) that something might have happened in the past or might happen in the future. In all these cases, the legal provisions, doctrine and judicial practice provide only the principles, guidelines and criteria that constitute the framework within which the courts establish the judicial truth, not only as an expression of objective truth, as a reflection of reality, but also as an element of adjustment or reconstruction of reality. Counterfactual hypotheses, characterized by relative certainty, in the legal sense, are the judicial way in which possible universes become part of the judicial truth, ceasing to be mere fictions. By entrusting judges with such a difficult task in civil liability cases, they are supposed to be guided by the light of the principle of fairness, and judicial truth is not only related to objective truth, but is also an expression of this principle.

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