Deciding the amount of damages according to free discretion is only one way of deciding when the amount of damages cannot be determined differently or it would bring disproportionate problems. Throughout time in certain countries the institute came to use not only as a way for determining damage but also a way for deciding about its foundation. Together with its development some dilemmas arose, such as its legal nature; if it is a real question or a legal question. This, however, entails some consequences for using certain legal remedies and it has an impact on private international law. The development of this institute in Slovenia mostly followed the Austrian example; however, there are still some differences. By using the provision about deciding according to free discretion, some dilemmas have arisen and the solutions for that need to be search for in jurisprudence and in the comparative law analysis of provisions and case law of other countries.