What does it consist of?
The estimatory oath can not only be a prerequisite for the filing of a lawsuit, but it also functions as a means of proof to accredit the pecuniary damages suffered by a person. Its relevance within the judicial process is enormous, since it has direct implications in the judge’s decisions.
What are the consequences?
This procedural mechanism is designed to provide seriousness and support to the economic claims in a lawsuit. Among its most important effects are:
- It is proof of the indemnity claimed if it is not contested or notoriously unjust.
- Limit to the judge: If the oath is not objected to, the judge may not sentence for a higher value than that which was initially estimated.
- Penalties for excess or lack of proof:
- If the amount sworn exceeds by more than 50% the amount resulting in the conviction, a penalty of 10% of the difference must be paid.
- If the claims are rejected for lack of proof of damages, the appropriate penalty is 5% of the amount claimed.
These sanctions seek to discourage the use of inflated figures in claims, something that sometimes occurs when damages are overestimated without solid evidentiary support.
The psychology behind the estimator’s oath
This legal figure can also be analyzed from the perspective of behavioral economics. There are certain cognitive biases that influence both those who file lawsuits and the judges who evaluate them.
The endowment effect
This bias leads people to overvalue what belongs to them , which leads them to file lawsuits overestimating the damages claimed for the losses suffered. Author Dan Ariely points to three main reasons for this phenomenon:
- The emotional charge or memories associated with the assets or rights.
- Loss aversion: we value what we could lose more than what we could gain.
- The false belief that others share our personal attachment to those assets or rights.
All of this can lead claimants to seek disproportionate amounts for damages that, although real, are not always objectively quantifiable.
The anchor effect
For their part, judges can be influenced by the so-called anchor effect, a bias that causes the numbers presented in a lawsuit – even if not properly proven – to unconsciously influence the final decision. In this context, the estimating oath acts as a barrier to avoid decisions based on unrealistic figures.
What about the second sanction?
Although the rule establishes penalties also when the damages are not proven, its application is more complex. This is due to the subjective nature of pecuniary damages, which has been analyzed by the Constitutional Court in judgment C-157 of 2013. Therefore, this second sanction is infrequently used, which limits its effectiveness in curbing procedural abuses.
In conclusion
The estimatory oath is a figure that helps to maintain balance in the judicial system, avoiding the filing of lawsuits with exaggerated claims and at the same time protecting defendants from unjustified convictions.
Moreover, its incorporation into legislation has a solid foundation in behavioral economics, demonstrating how law can draw on disciplines such as psychology to design fairer and more efficient mechanisms.
