- New Relevant Interpretation Guidelines Approved In The Vi Civil Law Workshop Of The Center For Judiciary Studies Of The Federal Justice Counsel Of Brazil
- April 30, 2013
- Law Firm: Siqueira Castro Advogados - São Paulo Office
On March 11 and 12th, 2013, the Center for Judiciary Studies of the Federal Justice Counsel of Brazil (CJE/CJF) has organized the “VI Civil Law Workshop”, wherein 46 new interpretation summaries of the Brazilian Civil Code were approved.
The event aimed at setting guidelines for Judges and legal professionals on the interpretation of civil law, according to updated case law and legal writings. The summaries result from a debate among judges, attorneys and professors, who formed work groups to examine specific themes in civil law, such as civil liability, family law, contracts, among others. The final text of the summaries has recently been published in the official website of the Federal Justice: http://www.jf.jus.br/cjf/CEJ-Coedi/jornadas-cej/VI%20JORNADA1.pdf (accessed April 22nd, 2013).
Since their first edition in 2002, the CJE/CJF summaries have been an important source of legal studies in Commercial and Civil Law and reflect the average opinion of renowned specialists on the themes proposed to debates, albeit not binding.
MORAL DAMAGES - SUMMARY 550: “EACH CASE HAS ITS OWN MERIT”
As regards the recently approved summaries on civil liability issues, the CJE/CJF study group was coordinated by Justice Paulo de Tarso Sanseverino, a Judge with the Superior Court of Justice.
The group discussed articles 186 and 944 of the Brazilian Civil Code, which provide for civil liability of the offender and establish the general parameter applicable to the indemnification due to the victim: “the extension of the damages”.
In order to identify the best interpretation of such articles, when it comes to non-patrimonial damages (damages that cannot be related to a person's property, but compensation for something like pain and suffering), the work group construed, and CJE/CJF approved, summary 550, which states that:
“The quantification of non-patrimonial damages must not be restricted to tables or pre-fixed amounts”
(in Portuguese: “A quantificação da reparação por danos extrapatrimoniais não deve estar sujeita a tabelamento ou a valores fixos”).
The justification brought up by the work group for this summary is that “each case has its own merit”, a saying that, according to them, should be a guideline to judges with regard to the usually called moral damages.
In fact, indemnification for moral damages in Brazil has basis on the Federal Constitution (article 5, V) and, for this reason, the majority of Judges and legal authors pronounce themselves against the persistent attempts of some members of legal community to limit or pre-evaluate the amounts of indemnification in accordance to “pre-listed events”. Some renowned legal authors struggle to scientifically define objective criteria for the quantification of non-patrimonial damages, but they acknowledge that, at the end of the day, the Judge will inevitably have to take into account the very circumstances of each event.
The CJE/CJF work group reminded that, three years ago, the Superior Court of Justice (STJ) made an attempt to establish parameters to homogenize the amounts of moral damages indemnifications found in Court precedents. The proposal included a list of events, such as a death of babies during birth (250 minimum wages), handicapping (600 minimum wages), death inside a school (500 minimum wages) and so on.
At the time, the STJ claimed that the amount of the indemnification for moral damages has a double function: to make up for the pain suffered by the victim and to punish the offender, in order to discourage new offenses. However, the judgments carried out by the STJ cannot enter the analysis of evidence and facts, and for that reason that Court is limited to decide whether an amount fixed by the lower Courts is excessively high or low.
Such attempt of the STJ resulted in no more than a press release in September, 13, 2009 ¿ containing several disclaimers on its purposes of mere information and non binding effect (as it should not have, anyway), but also a table indicating the amounts fixed in previous judgments, as follows:
2nd instance Court
Refusal to pay for medical-hospital treatment (with no health damages)
Refusal to supply medication (with no health damages)
10 minimum wages
Unjustified cancelling of commercial flight
100 minimum wages
Acquisition of vehicle with fabrication defects; problem solve within the guarantee term.
No damages found
Unjust registry in public debtors list
500 minimum wages
R$ 10 mil
Abusive intimate search
não há dano
50 minimum wages
Wife´s omission to husband about biological paternity of daughters
Death after throat surgery
Patient in a vegetative situation by reason of medical inaccuracy
Rape in a public building
Publication of a unrealistic note
Unjust/mistaken imprisonment by the Government
No damages found
(http://www.stj.jus.br/portal&under;stj/publicacao/engine.wsp?tmp.area=398&tmp.texto=93679) accessed April 22nd, 2013
Nevertheless, as the experts in the Civil Law Workshop pointed out, we should not retrocede to the ancient Law of the Twelve Tables (Leges Duodecim Tabularum), especially because there is a very slight distance between unjust enrichment and unimportant indemnification.
In this sense, to quote once again the Civil Liability Work Group of the CEJ/CJF, “When a judge takes a position with regard to moral damages, he/she should be aware of a few issues, including the gravity of the fact, the extension of the damages, the social and professional situation of the victim, the economic condition of the offender and of the victim, taking as basis the principles of reasonability, equity and proportionality, besides the Theory of Discouragement. In this way, the chance of achieving identical final results is practically none. The Judge cannot exempt him/herself from his/her duty to analyze, calculate and determine the indemnification within the scope of the parties claims. Therefore, considering the above, we conclude that there shall be no previous limits of amounts, so as not to run the risk of encouraging the diabolic industry of moral damages.”
Therefore, although the lack of pre-fixed amounts of indemnification may bring some uncertainty to the parties, a sensible analysis of the elements involved in the case, pointed out above, as well as of the analogous Court precedents, will serve as guidance to estimate the future indemnification in a lawsuit.