On December 15, 2023, the Committee on Civil Liability—composed of the sub-rapporteur, former senior public prosecutor (Procurador de Justiça) of Minas Gerais, Nelson Rosenvald, Superior Court of Justice (STJ) Justice Isabel Gallotti, and Goiás Court of Justice Judge Patrícia Carrijo, forwarded to the Rapporteurs of the Civil Code Reform Commission a set of suggestions regarding amendments to Title IX of the 2002 Civil Code.
Over the course of three months of work, the commission members engaged in a constant exchange of ideas, based on proposals discussed with experts in the field of civil liability—scholars, professors, and judges. Each dialogue or seminar served as an opportunity for reflection and learning. We never claimed to have definitive answers or a preconceived blueprint for the project. On the contrary, we began with only a few leads and, gradually, sketched out a systematization of civil liability, taking into account the current state of Brazilian society and what is envisioned for the coming years, while consolidating jurisprudential and doctrinal advances in Brazilian law and the best contributions from comparative law.
Civil liability in 2023 is far removed from the state of the art of the 1970s, the era in which the Civil Code was forged. This is not merely a 50-year gap, but rather half a century that has transformed human life and customs more significantly than the last 2,000 years of civilization.
As Stefano Rodotà emphasized in one of his last writings, civil liability acts as an alarm bell. After all, it plays the important role of serving as a repository for all the dysfunctions of a given legal system. The Civil Code of 2002 is a snapshot of civil liability exclusively tied to the pathologies of property and contractual default. However, today it not only encompasses multiple and complex property-related situations but also addresses the harmful effects of violations of fundamental rights and personality rights, the crisis in parenthood and marriage, and the recent pressures arising from emerging digital technologies—a priority concern in European and North American contexts that focuses on the harmful consequences of the use of such technologies at all levels.
While pressure on civil liability is growing exponentially, it is evident that the 27 articles of the 2022 Civil Code (Articles 927 through 954) fall far short of what a Civil Code requires to align with the most recent European instruments and with Argentina’s highly praised Civil Code of 2015. Indeed, other legal systems serve as mirrors—by looking at others, we better understand who we are.
Furthermore, nearly all of the provisions of the Reale Code reflect the content of the 1916 Civil Code, with only minor changes. Compared to its predecessor, the Civil Code of 2002 (CC/2002) innovated only in the general clause on risk (sole paragraph of Art. 927) and in the equitable reduction of damages (sole paragraph of Art. 944). It should be added that, unlike the legislative activity that has shaped various sectors of civil law over the past 20 years, there has not been a single legal innovation in the area of civil liability. In short, there is a temporal disconnect of more than 100 years.
A symptom of this disconnect between legislation and the reality of civil liability can be observed in classrooms throughout Brazil. Professors of civil liability do not teach the subject based on the Civil Code. On the contrary, they follow legal doctrine and court rulings, referring to the Civil Code mostly to criticize its significant gaps and lack of systematic structure. In truth, a Civil Code that aims to modernize civil liability does not require exhaustive regulation; it is sufficient for its provisions to serve as a starting point, providing objective and clear criteria for the necessary evolution of legal doctrine and the refinement of decisions by judges and courts.
Each sector of the Civil Code requires a specific degree of reform—greater or lesser—depending on its particular circumstances. Unlike the law of obligations, which is characterized by the permanence of technical and static rules—requiring only minimal changes—civil liability requires a broader intervention as a necessary condition for the Civil Code to maintain its normative relevance within our legal system.
In this regard, the systematization of civil liability is based on three justifications.
First: It is true that, from a stylistic and linguistic standpoint, we need a Civil Code that is simple and understandable to all. However, there is a distinctive feature of civil liability: the fact that it is a set of rules primarily directed at judges. Most civil lawsuits in Brazil—from the small claims courts to the higher courts—relate to the topic of civil liability in the broad sense. If our goal is to provide legal certainty and limit judicial discretion, the first step is to establish clear and objective criteria for addressing unlawful acts and awarding damages.
Second: Without denying the centrality of the Federal Constitution in our legal system, it is imperative to restore the coordinating role played by the Civil Code in relation to other systems of private law, such as, for example, the CDC, CLT, LGPD, and a set of laws that find reference in the general provisions and precepts scattered throughout the books of the Reale Code. The most recent laws address aspects not covered by the Civil Code, particularly with regard to tort law and the multifunctional nature of civil liability. The reform of the Civil Code is an appropriate time to consolidate, in a mature and judicious manner, the transformations in civil liability and to preserve its centrality in private law. Indeed, this is the purpose of the reform of civil liability in the French Civil Code.
Third: Those who advocate for a targeted and minimalist reform of civil liability argue that case law has come a long way, updating regulatory gaps and consolidating interpretations. However, we must remember the normative primacy of civil law systems. We do not have a tradition of a stable system of precedents, in the vein of Dworkin’s “chain novel,” in which each decision engages in a dialogue with those that preceded it in addressing “hard cases,” leading to a gradual systemic refinement. In contrast, our case law, however well applied, is always a fluctuating snapshot of a given legal norm at a specific point in time. Nothing is better for economic agents than a set of abstract norms that outline the rules of the game, with firm parameters for adjudication.
In light of these considerations, we propose a reform of civil liability focused on four main pillars, briefly outlined here:
First pillar: organizing the links for attributing civil liability, thereby bringing rationality and consistency to the factors determining the obligation to compensate: tort, risk inherent in the activity, and liability for the acts of third parties or for things. Added to this is the explicit conceptual inclusion of the prerequisites for liability, such as fault and causal link.
Second pillar: Organization of the system of damages, with a view to the need for regulatory restraint regarding the proliferation of various labels for harms to interests deserving of protection. It is suggested that the treatment of property damage be refined, as well as the explicit inclusion of criteria for assessing the loss of a chance. In line with recent European directives, emphasis is also placed on private enforcement, so as to grant plaintiffs greater autonomy to choose between compensation for damages, restitution of wrongful gains, or the amount that would have been paid to obtain consent. With regard to violations of existential interests, the category of non-pecuniary damages is established as a kind of umbrella provision capable of providing broad protection for personality rights. Finally, the two-phase criterion for compensation for non-pecuniary damages—developed in the Superior Court of Justice (STJ) by Justice Paulo de Tarso Sanseverino—is refined, providing it with a normative basis.
Third pillar: The primacy of the reparatory function of civil liability and the principle of full reparation is maintained. However, in contemporary society—which is pluralistic and complex—damages no longer have a purely individual and pecuniary nature but manifest as meta-individual, non-pecuniary, and at times anonymous and irreparable. To prevent the haphazard application of judicial responses to new challenges—which cannot be resolved by the compensatory function—we consider it necessary to adapt civil liability to the most advanced legal systems, so that it may be understood as a system for managing risks and restoring a balance that has been unjustly disrupted. Thus, in addition to limiting damages, there is a need to curb unlawful conduct through the introduction of preventive and punitive functions, with clear parameters for their application to moderate judicial powers, counterbalanced by a promotional function for economic actors who invest in governance and accountability.
Fourth pillar: updating the special part of civil liability, addressing scenarios involving damages that require specific provisions, such as those related to the civil liability of the State, legal entities, physicians, property owners, and the pre-contractual phase. At the same time, anachronistic provisions—originating in the Beviláqua Code—have been removed. These provisions addressed civil liability for dispossession, violation of honor, and infringement of personal liberty—legal interests already protected by the general rules of civil liability.
The justifications provided for each provision included in the revised Title IX elaborate on this introductory section across its four main pillars. Since this is a legislative reform and not a new Civil Code, we adhere to the guiding principles of operability, sociality, and ethicality, so dear to Miguel Reale. We bear in mind that a balanced system of civil liability requires a convergence between the protection of the market economy and the broadest possible protection of victims of harm and the community against all manner of unlawful acts. Furthermore, we consider it essential to harmonize general provisions with objective decision-making criteria, thereby establishing clear parameters for the actions of judges and courts.