Civil liability today: what every lawyer needs to know?

In an increasingly dynamic and complex legal landscape, civil liability emerges as a fundamental pillar for social peace, seeking to restore the moral and financial balance disrupted by the violation of legal duties. 

With the exponential increase in lawsuits, understanding their nuances, especially regarding moral damages, becomes indispensable for any legal professional. 

But how does our legal system protect non-material interests? What are the criteria for quantifying immeasurable pain? And what are the contemporary challenges in applying these concepts?

In this text, I want to invite you to unravel, together with me, the theory and practice of moral damages, exploring its foundations, classifications, methods of quantification, and the most recent discussions.

How does the Civil Code regulate civil liability?

Civil liability, in its essence, constitutes the obligation to repair damages, whether they are of a material, moral, or aesthetic nature. 

Historically, the institution has evolved from conceptions based on revenge to a system focused on compensating the victim, a trend that is easily verifiable today. 

This transformation was driven by social movements, industrialization, and the proliferation of special laws, such as the Consumer Protection Code (CDC).

In Brazil, liability can be subjective, requiring proof of fault or intent on the part of the agent (article 186 of the Civil Code), or objective, which dispenses with such proof in cases specified by law or when the activity normally carried out by the author of the damage implies a risk to the rights of others (article 927, sole paragraph, of the Civil Code). 

It is crucial to note that, while the liability of self-employed professionals (such as doctors, accountants, nutritionists, personal trainers) is subjective, that of service providers in general (such as gyms, hospitals, or banks) is objective, according to the Consumer Protection Code (CDC).

How was moral damages regulated?

Moral damages, in turn, refer to harm to a person's non-patrimonial interests. 

There are two main doctrinal currents for conceptualizing it: the subjective one, which understands it as pain, suffering, and humiliation, and the objective one, which defines it as injury to a legal interest of the human personality, incapable of economic valuation. 

The objective approach, which is more comprehensive, is preferable because it allows for redress even in situations where the victim cannot feel the pain (for example, wrongful inclusion in a credit bureau), constituting damage to honor or image.

It is clear that the 1988 Federal Constitution was a landmark, dispelling any resistance to compensation for moral damages by expressly guaranteeing the right to compensation for material or moral damages resulting from the violation of privacy, private life, honor, and image of individuals (Article 5, V and X). 

What are the types of moral damages?

In addition to individual moral damages, jurisprudence and legal doctrine recognize collective moral damages, which transcend the individual sphere to affect a community or society as a whole. 

Classic examples include damage to the environment, to administrative morality, and to historical and cultural heritage. 

The Consumer Protection Code, in its article 6, VI, expressly admits compensation for individual, collective, and diffuse moral damages. 

Law No. 7.347/85 (Public Civil Action Law) also provides for liability for moral and material damages caused to diffuse or collective interests.

Another relevant category is moral damage in re ipsa , which is presumed by the occurrence of certain facts, not requiring proof of suffering. In this case, the mere violation of a fundamental right or the occurrence of an event that intrinsically causes harm to attributes of personality already constitutes it.

Situations such as the death of a close relative or the wrongful denial of coverage by a health insurance plan are frequently cited as examples. Although the Superior Court of Justice (STJ) has wavered on the need for proof of suffering, the trend is to recognize the presumption of suffering in light of the severity of the harm to fundamental legal rights. 

However, for legal entities, moral damages generally require proof of harm to objective honor (image, good reputation).

How do you quantify compensation for moral damages?

Quantifying moral damages is undoubtedly one of the greatest practical and theoretical challenges of civil liability. 

The absence of a table (tariff) for the amount of compensation imposes on the magistrate the difficult task of arbitrating it, seeking a point of equilibrium that compensates the victim without generating unjust enrichment.

Article 944 of the Civil Code establishes that "compensation is measured by the extent of the damage." However, it is important to highlight that this is the only criterion that has direct normative support.

However, Brazilian jurisprudence has historically relied on other elements, many of which have been criticized by legal scholars.

1) Economic capacity of the injured party: although used to modulate the amount of compensation, it appears discriminatory, since the reparation seeks to restore the status quo ante , not to avoid "unjust enrichment," which does not occur in such payments.

2) Economic capacity of the offender and degree of fault/intent: these criteria, of a punitive nature, are foreign to the dogmatic tradition of Brazilian civil liability, which primarily aims at reparation.

However, elements of the repealed Press Law (Law No. 5.250/67), such as the intensity of suffering, the seriousness and repercussions of the offense, the social position of the offended party, and the intensity of intent or degree of guilt of the responsible party, still influence judicial decisions.

3) Two-phase method : The Superior Court of Justice (STJ) has consolidated the adoption of the two-phase method for quantifying moral damages.

First, a basic value is determined for the damages, taking into account the legal interest harmed and precedents for similar cases. 

Subsequently, this value is adjusted to the specific circumstances of the case, taking into account the degree of fault, the economic condition of the parties, the impact of the damage, among other factors.

It is essential that the judge, when determining compensation, bases their decision on analytical principles, avoiding the creation of penalties that did not previously exist in law. 

The argumentation must be clear, explaining the relationship between the grounds and the decision, in accordance with the duty of qualified justification of judicial decisions (art. 489, § 1, CPC).

What are the contemporary challenges of civil liability?

In the digital age, new challenges arise. The Brazilian Internet Bill of Rights (Law No. 12.965/2014) addresses, for example, the responsibility of application providers for third-party content, especially in cases of nudity or sexual acts of a private nature (Article 21). 

The protection of sensitive data (LGPD) and the balance between freedom of expression and personality rights are ongoing debates that require judicial deliberation.

In other words, in a constantly evolving legal world, understanding the fundamentals and challenges of civil liability and moral damages is essential for any lawyer who wants to stand out. 

This topic has been explored in the Postgraduate Program in Private and Business Law at IDP.

With this training, the lawyer ceases to act in a fragmented way and begins to see civil liability as a cross-cutting axis of Private and Business Law, integrating theory, practice and strategy.

IDP offers exactly that: a 100% online and live postgraduate program, with nationally renowned faculty, a methodology applied to real-world cases, and a network that connects you to the most qualified professionals in the market. 

Join the IDP's Postgraduate Program in Private and Business Law and transform knowledge into authority, theory into practice, and opportunities into results.