We are celebrating the 500th edition of IBERC’s Civil Liability Column on Migalhas. In addition to representing a significant editorial milestone in and of itself, this achievement fills us with healthy pride and symbolizes the consolidation of a permanent space for critical reflection, doctrinal updates, and institutional dialogue on the future of Brazilian civil liability. Since April 2020, when the column was launched, week after week IBERC members have provided readers with the most relevant insights regarding the structure, functions, and practical issues of civil liability, as well as its interplay with the entire legal system, with a particular focus on challenges related to risk management, the protection of vulnerabilities and meta-individual rights, data protection, and the digital environment. To celebrate this journey—and also the fact that it is Migalhas’ longest-running and most prolific legal column—we have selected four statements approved at the 10th Civil Law Conference (June 15–16, 2026), each of which, in its own way, reveals the vitality, sophistication, and contemporary expansion of civil liability in Brazilian law.
1- Statement 703 establishes that “the recognition of moral damages in re ipsa in favor of women who are victims of domestic violence does not preclude the possibility of compensation for indirect moral damages suffered by minor children who witnessed the assault.”
The rationale behind this proposition is that “domestic and family violence, although primarily directed at women, has independent harmful effects on minor children who witness such acts, such that, as subjects of law, children and adolescents—despite the fact that the harm was suffered directly by the mother—have suffered its repercussions, such that exposure to constant violence causes harm to their psychological, physical, and emotional well-being and to their healthy development. Thus, the direct or indirect exposure of children to spousal violence constitutes a serious risk factor for the development of behavioral problems, which removes the harm from the realm of mere assumptions, as set forth in Article 17 of the ECA. These individuals have the right to inviolability and to physical, psychological, and moral integrity, and it is everyone’s duty to protect them (Article 18 of the ECA). From this perspective, the certainty of harm—an essential requirement for civil liability—manifests itself in psychological distress and a violation of fundamental rights, such that the close bond between the children and the abused mother generates emotional effects detrimental to the minors, in accordance with the reasoning applied by the Superior Court of Justice (STJ) in REsp 254.418/RJ. Thus, although the children are not directly affected, there is certainty of harm, such that the recognition of moral damages in favor of the woman opens the possibility of compensation for those who actually witnessed the incident.”
The new statement aligns with the movement to streamline the application of the principle of full reparation, for the sake of greater effectiveness, particularly in protecting situations of vulnerability. From its wording, it is clear that there is a concern to extend the same protective framework afforded to women who are victims of domestic violence to the minor children who witnessed the assault, with the recognition that they, too, would be victims of the unlawful conduct, even if only indirectly (by ricochet). Its approval by a wide margin, both in the Civil Liability Committee and in the plenary session, reveals concern about the new consequences of the dramatic situation of violence against women plaguing the country, as reflected in overwhelming statistics. Not surprisingly, the Superior Court of Justice (STJ) established the following legal principle in the context of Recurring Issue 983, associated with the provisions of the Maria da Penha Law: “In cases of violence against women committed within the domestic and family sphere, it is possible to set a minimum amount of compensation for moral damages, provided there is an express request by the prosecution or the victim, even if the amount is not specified, and regardless of the evidence presented.” Such gender-based unlawful acts directly violate a woman’s dignity, automatically causing harm upon demonstration of the violent act, thereby immediately warranting the setting of a minimum civil award, even within the context of criminal proceedings. Transposed to civil law, the above understanding is reaffirmed by the Court’s settled doctrine that domestic and family violence against women gives rise to moral damages in re ipsa.
Speaking of moral damages in re ipsa, another important consideration raised by this statement is the debate surrounding this legal mechanism, which constitutes an exceptional technique for assessing the non-pecuniary damages resulting from the injury, in which the very objective severity of the harmful conduct justifies a presumption of an infringement upon personality rights or legally relevant collective values, thereby relieving the injured party of the burden of providing more robust evidence regarding the so-called “emotional distress.” Along these lines, the STJ recognizes moral damages thus presumed in cases such as the improper protest of a negotiable instrument or the irregular inclusion of a name in a delinquent debtors’ registry (with the caveat that the preexistence of a legitimate entry would preclude the duty to compensate—a position that has already been the subject, in another forum, of our criticism of the content of Precedent 385), exposure of consumers to defective products, leaks of sensitive personal data, improper denial of health insurance coverage in urgent or emergency situations, as well as certain cases of collective moral damages, when non-pecuniary values of the community are effectively violated. Conversely, the Court has rejected the automatic presumption in cases of delays in banking services beyond the time limit set forth in specific legislation (Topic 1.156), in the leakage of ordinary (non-sensitive) personal data, in denials of health insurance coverage based on reasonable doubt regarding contractual interpretation, as is generally the case with ordinary contractual default and accidents without victims.
What stands out, strictly speaking, from the scenarios listed above is the Court’s effort to distinguish them, in an attempt to maximize full compensation for non-pecuniary damages in those specific situations that benefit from the presumption. Despite the commendable effort to seek the best decision for each group of cases, the insistence on using the in re ipsa technique does not seem advisable for numerous reasons that cannot be addressed in this brief column.
Nevertheless, the list of situations deserving special treatment must include the claims of minor children who witnessed the assault on their mother, given the axiological significance derived from Articles 17 and 18 of the ECA, and above all from the Henry Borel Law and the Constitution of the Republic itself—whether in the provisions that define the essence of the principle of full reparation (Articles 1, III; 3, I; 5, V and X), or in the mandate that imposes the duty to ensure, “with absolute priority,” the human rights of children and adolescents, in addition to “protecting them from all forms of neglect, (...) violence, cruelty, and oppression” (Article 227, caput). In the context of a violent home, a minor child who witnesses his or her mother being assaulted has his or her own psychological well-being, emotional security, and dignity directly violated. The minor’s suffering is not to be confused with that of the mother, as the new statement clearly states. This constitutes an independent injury, with its own causal link arising from the aggressor’s conduct. Therefore, the recognition of the mother’s automatic damages does not absorb, compensate for, or exclude the need to compensate the child in the same manner.
2- Statement 705 provides: “Article 948 of the Civil Code lists a merely illustrative list of compensable damages and covers non-pecuniary damages suffered by the direct victim as a result of the violation of their right to life. The claim for compensation is transferred by right of succession to the victim’s heirs.”
According to the rationale for this statement, “damages for death are the non-pecuniary damages resulting from the severance of the essential connection between a person and their own life, arising directly and immediately from the unlawful act that violates the subjective legal status equivalent to the right to life. In Portugal, since 1971, compensation has been recognized for non-pecuniary damages suffered by the direct victim due to the loss of their life, in accordance with the school of thought led by Vaz Serra. Compensation for death-related damages is consistent with the open system of civil liability and with the principles of Brazilian inheritance law, especially following the issuance of Precedent 642/STJ, which establishes the heirs’ standing to seek compensation for non-pecuniary damages suffered by the deceased, even if the deceased did not initiate the action during their lifetime. Damage for death becomes certain at the moment the process of dying becomes logically irreversible, which is also when the claim arises. If the Brazilian legal system recognizes the broad transferability of claims for compensation for non-pecuniary damages, there is no logical reason to specifically exclude damages arising from death. Nor is it problematic that the victim does not benefit from the compensation, since in all cases in which the claim for compensation for non-pecuniary damages is transferred to the heirs due to the death of the direct victim, it is impossible for the victim to benefit from the compensation and its purported satisfactory function. Life is a right whose violation gives rise to compensable non-pecuniary damages.”
In fact, the discussion of damages for death stems from the observation that Brazilian civil law still provides insufficient treatment for the compensatory consequences of unlawfully caused death. Case law and legal doctrine generally focus, as a rule, on the damages suffered by third parties —notably the victim’s family members—whether in the form of pecuniary damages, such as funeral expenses and support owed to dependents, or in the form of non-pecuniary damages resulting from emotional loss. It is also recognized, under certain circumstances, that the right to compensation for damages suffered by the victim while still alive may be transferred to the heirs, especially when there is a time lag between the harmful event and death—a period during which physical pain, psychological suffering, anguish, and the awareness of imminent death may manifest. However, these categories do not fully capture the legal complexity of death as a tortious act, as they remain focused at times on indirect victims and at other times on the victim’s own terminal suffering, without addressing, in an autonomous manner, the unlawful taking of life as a primary legal right.
It is in this context that the need to recognize “damages for death” as an autonomous category—distinct from both the indirect damages suffered by family members and pre-death damages—is affirmed. Unjustly caused death represents not only the source of pecuniary or non-pecuniary damages to third parties, but also a radical violation of the right to life itself, the protection of which cannot be undermined by the argument that, upon death, the individual capable of receiving compensation ceases to exist. The absence of a distinct civil remedy leads to the paradox of attributing greater compensation to a serious, non-fatal injury than to the elimination of existence itself.
Consequently, the argument in favor of compensation for death is grounded in the constitutional evolution of Brazilian civil liability. Given the centrality of human dignity and the expansion of non-pecuniary damages following the 1988 Constitution, a property-based conception of harm has become insufficient. Compensation for death, therefore, does not represent a break with the compensatory function of civil liability, but rather its logical development within a re-personalized system, which places the human person at the center of legal protection and understands harm as the effect of an injury to legally relevant existential and property interests.
3- Statement 706, in turn, establishes that: “In the context of civil liability for loss of opportunity, the compensable damage is not the expected final benefit, but rather the relevant fraction of the lost probability itself, the amount of which must be determined in proportion to the chance of success that has now been interrupted.”
The first step toward establishing the theory of loss of opportunity in Brazil—albeit belatedly—was taken at the turn of the 21st century, with the recognition of the first landmark cases by the Superior Court of Justice (STJ) (the “Show do Milhão” case being the most high-profile during that period) and the subsequent spread of the theory of loss of opportunity through state and regional courts, especially in debates regarding its application in the context of contractual liability and the medical field. In this vein, Statement 444 was issued in late 2011, in the following terms: “Civil liability for loss of opportunity is not limited to the category of non-pecuniary damages, since, depending on the circumstances of the specific case, the lost opportunity may also constitute pecuniary damage. The opportunity must be serious and real, and is not restricted to a priori percentages.”
Statement 444 proved successful in its two objectives: to consolidate the understanding of an opportunity as a (new) legally protected interest, the loss of which may cause the victim both pecuniary and non-pecuniary damages, and to provide a framework for the requirement that the lost opportunity be serious, thereby making it independent of pre-established percentages. In other words, its scope of compensation was expanded beyond pecuniary damages while simultaneously ensuring that a lost opportunity—provided it is serious and real—is compensable, regardless of any minimum percentage.
With the possibility of redress now established under the conditions outlined above, studies are now advancing on the means of quantifying the lost opportunity and its autonomy. To further refine this new stage, the rationale for the proposed entry—after highlighting the importance of “detailing the quantitative and qualitative criteria for compensation for the loss of an opportunity”—concluded that “Brazilian case law, as consolidated by the STJ, adopts the theory of loss of opportunity, but is clearly controversial and restrictive regarding the criteria for determining the amount of compensation. Therefore, based on the arguments presented, it is necessary to approve the civil law provision outlined above, with the aim of guiding the free exercise of judicial discretion, promoting the uniformity of case law, and, consequently, strengthening legal certainty in the country.”
The rationale behind the new Statement 706 lies first in reinforcing the autonomy of the chance, distinguishing it from the expected final benefit. The harm, it must be emphasized, is to the chance—to the legitimate opportunity that the person would have had to obtain a particular benefit—and the consequences of this harm cause such an opportunity to be lost or diminished. The key to interpretation, therefore, lies in distinguishing the chance from the desired final outcome, which would have occurred following the normal course of events had it not been for the tortfeasor’s unlawful intervention. In fact, the Superior Court of Justice (STJ) has established the understanding that the amount of compensation for a lost chance cannot be equal to the value of the expected final benefit.
This brings us to the second and final part of the statement, which articulates the rule of proportionality in the calculation of damages, developed through the following steps: First, the judge must determine the total value of the benefit sought by the victim had the normal course of events not been interrupted. Next, based on the body of evidence, the judge must establish the actual and reasonable percentage of probability of success that the injured party possessed prior to the harmful event. Finally, the judge must multiply the amount of the intended final outcome by the percentage of the lost chance, which will result in an amount necessarily lower than the total benefit, to avoid unjust enrichment. Thus, in the common example of a lawyer missing an appeal deadline—a case of subjective liability for breach of the obligation of means—assuming that the total intended outcome is R$100,000.00 (one hundred thousand reais) and that the real and serious probability of winning the case is 40% (forty percent), the client would be entitled to R$40,000.00 (forty thousand reais) as compensation for the lost chance. It should be noted, however, that if the appeal was doomed to failure, with no possibility of being granted, there will be no damages to be compensated, and therefore the claim for damages will be dismissed.
4- Next, Statement 708 provides: Financial institutions are civilly liable for damages resulting from fraud committed by third parties when there is evidence of a breach of the duty of security or failure to prevent atypical transactions incompatible with the client’s profile.
The rationale states: “The digital transformation of private transactions has increased the incidence of electronic fraud committed by third parties in the context of banking services and digital platforms. In such cases, the mere intervention of the fraudster is not, in and of itself, sufficient to exclude the civil liability of the service provider when the damage stems from a risk inherent in the activity performed and from a failure to fulfill duties of security, surveillance, authentication, and prevention of abnormal transactions. The proposal specifies that, if there is a connection between the harmful event and vulnerabilities in the service, the fraud constitutes an internal fortuitous event, in light of Article 927, sole paragraph, of the Civil Code. This statement helps standardize the interpretation of civil liability in the digital environment without imposing automatic liability, as it requires a link between the fraud and a concrete deficiency in the protective mechanisms objectively expected of the economic agent.”
In addition to giving concrete effect to Statement 443: “Fortuitous events and force majeure shall only be considered as exclusions from civil liability when the event giving rise to the damage is not connected to the activity being carried out,” the aforementioned Statement 708 of the Civil Law Conferences addresses one of the most sensitive issues in contemporary civil liability: the attribution of damages resulting from fraud committed by third parties in the digital banking environment. Its main merit lies in rejecting two equally inadequate extremes. On the one hand, the mere involvement of the fraudster does not, in and of itself, exclude the financial institution’s liability, especially when the harmful event reveals a vulnerability in the service, a failure in authentication, insufficient monitoring, or a lack of response to objectively atypical transactions. On the other hand, the statement also does not establish automatic or full liability on the part of banks for any and all fraud, as it conditions the obligation to compensate on the demonstration of a failure in the duty of security or in the prevention of transactions incompatible with the customer’s transactional profile.
The approved guideline addresses the distinction between internal and external fortuitous events, taking into account the state of the art. Fraud committed by a third party will be legally attributed to the risk inherent in financial activity when it is connected to the organization of the service—that is, when the damage results from deficiencies in security, surveillance, authentication, blocking, alert, or risk analysis mechanisms. In such cases, the fraudster’s actions do not break the causal link, as the harmful event falls within the scope of risks that the financial institution must manage professionally. Conversely, when it is demonstrated that the transaction was properly authenticated, that there were no objective signs of irregularity, and that the required security mechanisms functioned adequately, liability may be waived due to the absence of a service defect or the existence of a cause that breaks the causal link.
The statement, therefore, proposes a balanced solution: it recognizes that digital transformation has expanded the security obligations of financial institutions, without turning them into universal insurers against every scam perpetrated by third parties. The duty of security, in this context, must be understood as a qualified obligation of means, guided by criteria of reasonableness, proportionality, technical adequacy, and regulatory compliance. Therefore, judicial analysis must focus on the concrete predictability of the transaction, its compatibility with the customer’s history, the existence of successive or unusual transactions, atypical credit arrangements, the sudden depletion of the account, and the presence—or absence—of proportionate mechanisms for alerts, time delays, enhanced authentication, or preventive blocking. Finally, Statement 708 aligns with Precedent 479 of the Superior Court of Justice (STJ) “Financial institutions are strictly liable for damages resulting from internal fortuitous events related to fraud and crimes committed by third parties in the context of banking transactions,” updating it to reflect the zeitgeist of our century’s rapid technological advances.
Following these brief remarks on four of the new statements approved at the 10th Civil Law Conference, we leave readers with the message we shared on the first anniversary of this column, on the now-distant April 23, 2021: our hope that this space will continue to serve, through the agile sharing of information it facilitates, as yet another link in the fundamental connection between “law-in-action” and “law-on-the-books,” as well as a point of convergence and cultural exchange for students, scholars of Civil Liability, and, above all, IBERC members—the authors, the primary audience for the published articles, and the main honorees of these pages: congratulations on the 500 columns, and, as we pave the way for the future, may there be another 500 to come!