Table of Contents: 1. Between the Person and the Subject; 2. Non-human animals as effective holders of rights; 3. The Problem of Overcoming Animals’ Lack of Legal Capacity; 4. Animals as Heirs/Legatees in Succession; 5. Animal Care and the Dissolution of Affective Unions; 6. Implications for Civil Liability; 7. Conclusions; 8. Bibliography.
Abstract: In Brazil, a bill (PLC 6.799/13), authored by Representative Ricardo Izar, proposes a new categorization of non-human animals (including pets), classifying them as non-personified subjects of law. The purpose of this paper is to analyze the potential implications that would arise should this bill eventually become law. The main implications analyzed include addressing the (physical and legal) incapacity of non-human animals, the possibility of them acting as successors causa mortis, and how the theory of civil liability should address this new categorization. At the same time, it proposes a new term for the current “shared custody” arrangements for pets.
Abstract: In Brazil, a Bill of Law (PLC 6.799 / 13), authored by Deputy Ricardo Izar, proposes a new categorization of non-human animals (among them pets) and they appear as subjects of law not personified. This work aims to analyze possible implications that would be felt from the eventual conversion of this project into law. The main reflexes analyzed are the supply of incapacity (physical and legal) of non-human animals, the possibility of them appearing as successors when death of your guardian as occurred and how the theory of Civil Liability should face the new categorization. At the same time, it presents a proposal for a new nomenclature of the current “shared guards” for pets.
Keywords: non-human animals; subjects of law; coexistence; Civil Law; Biolaw.
Key-words: non-human animals; subjects of law; coexistence; Civil Law; Biolaw.
1. Between the Person and the Subject
Historically, the concept of the person has revolved around a whole set of rights and duties, and today it stands as the ultimate goal of Civil Law—the fulcrum of the entire private legal system, which is designed to safeguard and protect the person’s interests. As Caio Mário notes, “the concept of personality is closely linked to the person, as it expresses the general capacity to acquire rights and assume duties” (PEREIRA, 2004: 214).
The person, however, is not the only entity capable of having rights and duties attached to it; thus, it is not the only entity that possesses rights and obligations. The person belongs to a broader class—that of legal subjects—which encompasses all entities capable of holding rights and obligations under civil law, as they are endowed with legal capacity.
(...) legal capacity involves the ability to acquire rights and assume duties personally. More specifically, it means that the most diverse legal relationships (entering into contracts, getting married, acquiring property, appearing before the judiciary...) can be carried out personally by fully capable individuals or, in the case of those lacking legal capacity, through third parties (a representative or assistant). (FARIAS & ROSENVALD, 2017: 330)
One of the justifications for the narrow view held by scholars regarding other entities that may be subjects of law can be found in the former Article 2 of Law 3.071/16, the Beviláqua Code, which established that every man is capable of rights and obligations under civil law. In an effort to correct the sexism perceived by some in that article, the Reale Code, incorporated into Law 10.406/02, established in its Article 1 that every person is capable of rights and duties in civil matters. This was an improvement, but it did not eliminate the error. The legislature missed an opportunity to create a general theory of legal subjects, putting everything in its proper place. Thus, confusion between “person” and “legal subject” is not uncommon.
From a didactic standpoint, we must, based on the well-known lesson of Fábio Ulhôa Coelho, outline the focus of this paper. Subjects of law are divided into two broad categories: personalized subjects and non-personalized subjects. In the class of personalized subjects, we have natural persons and legal entities—a category and an institution, respectively—familiar from undergraduate courses. On the other hand, among the non-personalized subjects are humans (including the unborn) and non-humans (such as a bankrupt estate, an estate of a deceased person, joint ventures—or irregular or de facto partnerships—among others), and it is precisely in this last category—that of non-human legal subjects—that we will begin our exploration. However, first, some information about the path ahead is necessary. Although there are, in Brazil, two major schools of thought regarding the onset of human personhood—with “natalists” on one side and “conceptionists” on the other—and based on the work of these authors, it is known that for the latter school, the unborn child is already considered a person; but the first school of thought seems more accurate to us (without overlooking a third theory—that of conditional personhood, which is less prominent in Brazil), since the condition for attributing personality rights (the legal term for “personal rights” in Brazil) lies outside the legal concept of a person and is grounded in the human nature of the rights holder, hence the absence of personality rights beyond the human realm (legal entities, for example, based on Art. 52 of the CCB/02, enjoy equivalent protection without possessing such rights). Let us resume our journey in search of a possible new category for animals within the Brazilian legal system.
The law is grounded in reality, interacts with it, and seeks to shape it to meet some of humanity’s fundamental needs. The genus homo—regardless of whether we are all sapiens or still share a bit of erectus or neanderthalis—is today the subject of a debate regarding the status of animals. Yes, the great Animalia kingdom draws attention to all its members, but, until now, only human animals have been protected in a unique way. It is for their sake that the wheel of law turns. However, over the past decade, a new sentiment toward non-human animals has emerged, spreading across the globe in favor of recognizing them as sentient beings. According to the Houaiss Dictionary, “sentient” is an adjective that describes one who feels, who perceives through the senses. And it is in this sentience that the crux of the matter lies—the very point that has sparked the entire debate regarding the status of non-human animals as subjects of law. A brief overview of some of the laws that have recognized this special status can be found in the work Código Civil Comentado para Concursos (FARIAS et alii, 2019: 36),
The Czech Civil Code, Law 89/2012, in § 494, states (literal translation): “Living animals have significance and are valued as living beings with emotions (or, as sentient beings, N.T.).” However, even though they are beings with special status, they remain the property of a person, with the exception of wild animals (as provided in § 1.046), since they are subject to the general rule of § 1.011: “Everything that belongs to someone—all their tangible and intangible possessions—is their property.” Similarly, the Hungarian Civil Code, in Section 5:14, Item 3.
Portuguese Civil Code – (the articles cited here refer to Portuguese law) the most recent development in the recognition of animals as sentient beings is found in the Portuguese Civil Code, through amendments introduced by Law No. 8/2017, of March 3, which recognized that animals are living beings endowed with sentience and are subject to legal protection by virtue of their nature (Art. 201-B). Some points are particularly noteworthy: a) recognition that animals, despite their special status, remain subject to property law (Art. 1.305, 2), to the extent that they may be considered found property, but the finder of an animal may retain it in the event of a well-founded fear that the found animal is a victim of mistreatment by its owner; b) the establishment of a set of duties toward the animal (Art. 1305-A, 2, a and b) without asserting that animals are the holders of such rights—hence the assertion that animals constitute a tertium genus, neither objects nor subjects of law; c) recognition of custody—whether sole or shared—for companion animals, thereby preventing the application of provisions derived from the protection of children and adolescents to animals (Art. 1793-A): companion animals are entrusted to one or both spouses, taking into account, in particular, the interests of each spouse and the couple’s children, as well as the animal’s well-being; d) the establishment of compensation for moral damage in cases of death, the loss of a vital organ or limb, or a serious and permanent impairment of the animal’s ability to move —with the animal’s owner as the holder of such rights—thereby planting the first seed so that, in a future in which animals are recognized as special subjects of rights, such damages may be treated as ricochet (indirect) moral damages.
It is a fact that, whether since the Big Bang or the “fiat lux,” animals have roamed this planet for a long time, and today they are divided between us, humans, and our brothers and sisters with microbiological ancestors—nonhuman animals. And for them, it is time to take notice. Our analysis will not address potential mutations or modifications in the animal genome that might generate new levels of intelligence in them, but let us be clear that these developments will be of significant importance to biolaw in the near future.
Before we continue, we must define a theoretical framework, which will be based on PLC (Chamber of Deputies Bill) 6.799/13, authored by Representative Ricardo Izar, the text of which will be presented to you, dear reader, later on and will serve to provide a concrete framework for what will be discussed here.
2. Non-human animals as effective holders of rights
To date, considering the current state of the art, we can observe that the protection of animals is based primarily on Law 9.605/98, with society at large as the passive subject, since non-human animals are protected to generate a protective effect for humanity. Any debate that has arisen thus far considers animals as objects of protection, since their condition produces reparative and preventive effects with regard to the environment as a whole.
Humans are the focal point of everything that has been done, up to the present, on behalf of animals, attributing not an intrinsic value to each one, but rather a relative status based on the purpose they serve for human beings, as beings embedded in a complex environment that must remain in balance.
The “being-in-itself” (not in the Sartrean sense) of animals had not, until now, been the subject of analysis or consideration. What objectifies them or sets them apart from other things had not been taken into account, and a few minor flashes of rationality on the part of the national legislature were far more focused on recognizing the rights of owners than on considering the non-human animal as a subject of law, as in the cases of “shared custody” of domestic animals (specifically referred to as “pets”). In due course, we will evaluate this new conception of these situations, including an examination of the sign/signifier attributed to them.
Bill PLC 6.799/13, currently under review by the Senate and which has resumed its progress in the Chamber of Deputies due to a drafting amendment (numbered PL 27/2019 in the Senate). Although its wording is modest (and partially truncated), it brings a breath of fresh air south of the equator, revisiting the theory of legal subjects.
Let’s look at the original text (we will not address the drafting amendment added by the Senate, as it concerns agricultural production, scientific research, and intangible cultural expressions—such as the “vaquejada”—and, on constitutional grounds, religious practices).
Article 1—This Law establishes a special legal regime for non-human animals.
Art. 2—The fundamental objectives of this Law are:
I – the affirmation of the rights of non-human animals;
II – the building of a more conscious and compassionate society;
III – the recognition that non-human animals possess biological and emotional nature and are sentient beings capable of suffering.
Article 3 – Non-human animals possess a sui generis legal status and are non-personified subjects of rights, which they must enjoy and for which they must receive judicial protection in the event of a violation; their treatment as property is prohibited.
Art. 4 – Law No. 9.605, of February 12, 1998, shall take effect with the addition of the following Article 79-B:
“Art. 79-B – The provisions of Art. 82 of Law No. 10.406, dated January 10, 2002 (Civil Code), do not apply to non-human animals, which are subject to non-personified rights.”
Before proceeding, a few observations on the wording of the law are necessary; these will be limited (though they may go further, if the context so requires) to the issue of animal suffering and the nature of the new legal subjects.
First, the legislature is proceeding from a mistaken premise when it asserts that animals are sentient because they are capable of suffering. In reality, they are capable of experiencing, to a greater or lesser extent, a range of emotions. It is not uncommon to observe the joy of a small dog playing with a ball or the anger of an animal protecting its owner or companion. Sentience is a state that goes beyond mere suffering—which is linked to the physical condition of pain, practically a reflex response of the physical body—to suffering as a feeling, to joy, to enthusiasm, and even to something complex and almost ineffable, such as longing. Feeling, in this sense, goes beyond mere suffering. It is a complex interplay of elements that, in addition to defining life (at least on some levels), creates a new space for connection with human beings. If we have distanced ourselves from the evolutionary chain due to our acquired capacity for reasoning, it is through feeling that we return to a common ground shared by all living beings. Furthermore, it is a major step forward to consider that humans are beginning to view other animals that have evolved in ways different from our own, since we are a species that struggles greatly to accept what is different (we insist on classifying, labeling, and separating ourselves). This is because even “future generations” are recognized as subjects of rights.
(...) the “future generations,” referred to in Article 225 of the Federal Constitution, are recognized as subjects of law, even though they do not yet physically exist. They are always “future,” as the expectation is that the population will not become extinct. As a counterpart to the rights of these legal subjects, current generations have a legal duty to preserve the environment for when future generations arrive. In such cases involving holders of collective rights, the legal system authorizes public agencies or entities to promote the defense—including through judicial means—of these rights and interests, acting as appropriate procedural representatives. These representatives, such as the Public Prosecutor's Office or an association, are not the holders of the right itself, but rather have standing to defend it (LÔBO, 2013: 98)
On the other hand, strangely enough—and this strangeness becomes even more pronounced when we examine Article 4—the legislature intends to attribute a sui generis nature to animals, yet in the same article (Article 3) states that they are non-personified subjects of rights. A straightforward reading of Article 3 may suggest an apparent tautology, since the legislature first asserts that the legal nature of animals is sui generis, only to then classify them as non-personified subjects (a well-known and extensively studied category). However, in Article 4, the legislature demonstrates that the tautology went further, as it created a new category of “non-personified rights”—that is, it established that there are specific rights that apply only to non-personified entities.
In reality, the legal capacity attributed to non-person entities (human or otherwise) manifests itself in specific ways, but there is no fixed list of rights that applies to all cases. Each entity (bankrupt estate, unborn child, estate of a deceased person, etc.) entails a complex set of rights and duties, necessary, on the one hand, to ensure the legal existence of the entity for as long as necessary and, on the other hand, to provide third parties with guarantees of enforceability in any conflicts that may arise from their interaction with such entities. In short, legal entities may or may not be personified, but rights and duties are tied to legal capacity, which does not require personification.
Despite these stumbling blocks, the intrinsic value that a potential change in legislation would bring is undeniable. Seeing others beyond the lens of speciesism would be a major step forward for Brazilian society, which still struggles against femicide, homophobia, and disguised racism. And, within this context, in the hope that this glimmer of progress may become enduring, we review some of the main topics that may arise with the arrival of this “second sun, to realign the planets’ orbits.” Sebastian Soler reminds us that man’s being is given to him within the world. In this condition, both his thought and his action are immersed and have no escape. Within that world, it is possible to distinguish, as we have said, between relationships of pure coexistence and relationships of co-living (SOLER, 1974: 26). In this vein, the new regulations expected to become law will enable coexistence with animals to take root and clearly become a recognition of our co-living with them. Furthermore, humans—who today are consumers and maintain fluid connections in their existence—will come to recognize other animals as subjects of rights, worthy of special protection, and as agents within the legal world.
3. The Problem of Overcoming Animals’ Lack of Legal Capacity
Recognizing the necessary progress that must stem from acknowledging animals as subjects of law, the first step must be addressing how to compensate for animals’ legal incapacity—that is, how to address their mental and physical inability to express their legally protected will. This point is directly linked to the next item, since, in qualifying as legal successors, sufficient mechanisms must be established to ensure that animals’ rights are safeguarded. Not only for this reason, but also, for example, in cases of abuse, the animal itself could be the plaintiff, with its guardian acting on its behalf.
The two main mechanisms for overcoming incapacity—without taking into account judicial remedies (whether ad hoc or permanent)—are “presentation” and “representation.”
“Presentation,” a concept coined by Francisco Cavalcante Pontes de Miranda in a well-known treatise, involves addressing not an incapacity of will, but rather an inability to physically express oneself, since legal entities and depersonalized entities do not possess a natural will, but rather an institutional one, and must have their interests presented and defended, thereby becoming “present” at the act. The presenter creates this presence on behalf of the party who cannot be physically and voluntarily present at the act. There is no legal incapacity to remedy, but rather a substantive element to supplement. ULHÔA COELHO emphasizes that “the formation and expression of will by a legal entity are regulated by law and by its respective constitutive act (articles of incorporation or articles of association). They depend, of course, on the decisions and expressions of certain men and women, acting individually or jointly” (2013: 263).
On the other hand, without entering into the debate regarding the protection of will or interest, it is up to the representative to address a legal incapacity, which is the primary focus of representation. Here, the law requires a will that acts as a safeguard (assistance) or as a substitute (representation) to protect those who lack full capacity to understand their own actions.
With regard to animals, we must understand that a dual system applies, which can effectively be addressed through representation. Thus, the representative would act both to ensure the animal’s presence and to express its will in its best interest. It is worth noting here that, in the absence of sufficient clarity to understand the actual will of the represented party, representation must be guided by the animal’s best interests, based on the range of probabilities regarding the will the animal would have expressed had it been able to do so.
4. Animals as Heirs or Legatees in Succession
The status of successor is not automatically granted to those who possess legal capacity, since the Civil Code establishes as a general rule for capacity to inherit that the prospective heir must have been born (or established) by the time the succession is opened (rule of coexistence). We know that the same Code provides exceptions to this rule, allowing a bequest to be made in favor of potential offspring of living persons or for assets to be left to a legal entity to be established in the form of a foundation. In short, the legal system requires that the beneficiary be (i) a person and (ii), as a general rule, a human being. Legal entities were only authorized to inherit (both those already in existence and foundations to be created) by express provision (Art. 1.799, II and III), while potential offspring were granted extraordinary capacity to inherit under the first item of the same article.
It should thus be noted that the mere recognition of non-human animals as subjects of rights does not justify the immediate conclusion that they qualify to inherit, whether as heirs or as legatees (we will see that the solution will be somewhat more complex, even for this specific case). However, it must be understood that this will be a natural claim, arising from the attribution of this new legal status, given how eager guardians will be to protect their pets in their absence.
Today, as we know, it is not possible to bequeath property to an animal, but it is possible to protect a pet by establishing a charge, whereby the legatee or testamentary heir is obligated to provide proper care for the animal until a specified date or until the animal’s death. Brazil has seen cases—including those debated in court—in which the validity of such charges has been recognized.
But which (or which ones) of the parties involved in Succession Law would apply to animals? We know that the category of successors includes heirs, legatees, and the State (here meaning the Public Treasury, since the assets will be transferred to the municipality). Testamentary heirs and legatees are designated by these specific terms due to their distinct circumstances: on the one hand, the heir, who receives a share of the estate; and on the other, the legatee, who receives a specific asset or a share of specific assets. Meanwhile, the State is simply referred to by its own name, since it has not expressed any intention regarding its participation in the succession: it will automatically receive the net estate at the end of the vacancy iter. And here lies the space where we believe the animal with legal capacity should be recognized.
It will be up to the animal to be recognized as a successor (if these are the trends that take hold in Civil Law and the interpretation of the law), with no question of renouncing the inheritance, but only being able to accept the net estate, thereby absolutely ruling out the possibility of subsidiary liability under Article 1.792 of the Civil Code (The heir is not liable for liabilities exceeding the value of the estate; however, the burden of proof regarding the excess lies with the heir, unless an inventory exists that exempts him from this burden by demonstrating the value of the inherited assets).
And how would the inheritance, now considered an estate, be managed by the animal? How would tax liabilities be imposed on it? In the same way that the estate of a legally incapacitated person retains its assets and tax liabilities are collected directly, as is the case with any person. If there is a legal subject, upon acquiring rights, it will also assume corresponding duties. The guardian of the non-human animal must bear the responsibilities and obligations inherent to that role, with the understanding that any testamentary bequest involving financial obligations will require the guardian’s consent, always keeping in mind the best interests of the animal in question.
5. Animal Care and the Dissolution of Affective Unions
In recent years, we have seen a series of rulings recognizing “shared custody” of pets upon the dissolution of romantic relationships. This development, which continues to place the debate over relationships with pets within the purview of Family Court—which is better equipped and prepared to handle the emotions surrounding such cases—has aligned the thinking of specific institutions within Family Law in favor of addressing issues related to pets.
INTERLOCUTORY APPEAL – PRELIMINARY INJUNCTION FOR SEARCH AND SEIZURE – PET – ACQUIRED DURING DATING – DISPUTE OVER OWNERSHIP OF THE PROPERTY – SIGNED AGREEMENT – JOINT POSSESSION – In this interlocutory appeal, it is not appropriate to address the merits of the case, that is, the ownership of the animal, under penalty of suppression of a level of jurisdiction—in proceedings for an emergency injunction, the court analyzes only the likelihood of the right and the danger of harm or risk to the outcome of the case (Art. 300 NCPC); - There is currently much debate over whether an animal should be considered a “thing” or a “being.” The case law of this Honorable Court has recognized that animals are part of the family unit—precedents; - This case should not be treated merely as the seizure of a “thing”—one must take into account all the particularities of the case and the interests of the parties, who demonstrate unquestionable affection for the animal; - Although the legal concept of a common-law marriage does not apply in this case under Art. 1723 et seq. of the Civil Code, since the parties were merely in a dating relationship, there is no obstacle to establishing shared possession of the animal, along the lines of “shared custody.” APPEAL PARTIALLY GRANTED. (TJ-SP 21972952120178260000 SP 2197295-21.2017.8.26.0000, Reporting Judge: Maria Lúcia Pizzotti, Date of Ruling: June 20, 2018, 30th Chamber of Private Law, Date of Publication: June 26, 2018)
INTERLOCUTORY APPEAL. JOINT CUSTODY. FAMILY LAW PRINCIPLES. APPLICATION TO PETS. DISPUTE REGARDING CUSTODY OF THE ANIMALS. LACK OF PLAUSIBILITY OF THE CLAIM. PRELIMINARY INJUNCTION. IMPOSSIBILITY. INTERLOCUTORY APPEAL ACCEPTED AND DENIED. 1. Emergency relief is governed by Articles 300 et seq. of the Code of Civil Procedure, the cornerstones of which are the likelihood of a valid claim and the danger of harm or the risk to the successful outcome of the proceedings. 2. There is no legal plausibility in the request to apply family law principles—more specifically, joint custody—to pets when the spouses do not agree on who should have custody of the animals. Since pets are living beings, they are treated as property under the Civil Code and, as such, must be divided if it is established that they were acquired through joint effort and during the marriage or the existence of the family unit (Article 1.725, CC). 3. In this case, in the absence of prior recognition of a common-law marriage, it is necessary to await the proper investigation and presentation of the body of evidence before deciding on the assets to be divided. Furthermore, the judge is prohibited from rendering a decision of a nature different from that requested, in accordance with the principle of adherence or congruence, pursuant to Article 492 of the Code of Civil Procedure. 4. APPEAL HEARD AND DENIED. (TJ-DF 20160020474570 0050135-88.2016.8.07.0000, Reporting Judge: LUÍS GUSTAVO B. DE OLIVEIRA, Date of Ruling: May 4, 2017, 8th CIVIL PANEL, Date of Publication: Published in the DJE: May 12, 2017. Page: 491/501)
The new trend toward recognizing nonhuman animals as legal subjects would partially alter the current position. Not a structural shift, but rather the need to consider—even if only partially—the animal’s interests. Today, just as has occurred with many family law institutions in the past, it is the interests of the litigating parties that are weighed on the scales, without any way to measure how the pet will be affected by the decision. Studies on animal behavior will certainly emerge, not to develop a doctrine of best interests (which is restricted to children and adolescents), but to establish mechanisms for assessing the effects of shared custody arrangements on the animal itself—specifically, their impact on habits and development.
A brief digression is now in order. We do not believe it is appropriate to use the term “shared custody” as a concept applicable to cases involving animals. However, as can be seen throughout the text, we are using the word “guardian” to refer to the person who has a pet in their care. This is because it would be unfair to the reader to introduce a new term without properly explaining it. There was no better time than now to make such an introduction.
It should be noted that the entire structure of ownership, possession, and custody must be reexamined, since there is no ownership over a legal subject; at best, the concept of “title” may apply in some cases. However, this title implies a subject that is practically objectified, devoid of feelings. By way of a proposal, we suggest the word “caregiver” and the expression “shared care”—a full substantivization of the verb “to care”—so that progress in the treatment of animals, to be elevated to the category of non-personified subjects of law, may also breathe new life into the language of our existence. From this point forward, we will set aside “shared custody” and move toward the use of “shared care.”
“Shared care,” which will be built upon the current foundations of custody, has a clear advantage in that it avoids confusing legal institutions with different scopes of application—institutions that will be governed by different principles—thereby freeing custody to regulate human beings and allowing it to evolve freely, while at the same time enabling the interpreter to construct a distinct theory applicable to animals as non-personified subjects of law.
Finally, it seems inappropriate to us, for now and within the limits of this work, to discuss interspecies unions, bearing in mind BRUNDAGE’s observation that
every human society attempts to control sexual behavior, since sex represents a rich source of conflict that can disrupt orderly social processes. Human sexuality is too powerful and explosive a force for any society to allow its members absolute sexual freedom. Certain limits must be imposed, certain rules must be agreed upon, and certain mechanisms must be devised to enforce compliance with those rules. Throughout history, communities have employed various combinations of law, religion, and morality to achieve this control. It is not surprising that the regulation of sexuality has been a fundamental feature of virtually every legal system we know of (2003: 21).
For now, it is up to parenting projects to incorporate, in one way or another, a relationship with animals—not as partners, but as members of a new form of extended family.
6. Implications for Civil Liability
Finally, in this objective and straightforward exploration, we arrive at the concept of civil liability and its potential influence should nonhuman animals be elevated to the status of non-personified legal subjects.
In Brazil, the liability of “animal owners” is currently regulated by Article 936 of the Civil Code (CCB) as follows: “Art. 936. The owner or keeper of the animal shall compensate for any damage caused by it, unless they prove the victim’s fault or force majeure.” This is a case of direct liability, since the separation of assets and liability invoked by indirect liability (Article 932 of the Brazilian Civil Code) requires the existence of two distinct legal entities (that of the agent and that of the liable party). Therefore, it is a direct and simple attribution of liability—and, let us not forget, an objective one, not based on fault—since it recognizes only two circumstances that establish a new causal link (the victim’s exclusive fault and force majeure) as grounds for exemption from liability. A well-conceived system with over a century of case law—would it really be undermined by a shift in favor of non-human animals?
ACTION FOR DAMAGES: CIVIL LIABILITY OF THE OWNER OF ANIMALS THAT TRESPASS ON CROPLAND, CAUSING DAMAGES TO THIRD PARTIES. COMPENSATION IS AS BROAD AS POSSIBLE, BUT MAY NOT EXCEED THE DAMAGES ACTUALLY ESTABLISHED. JUDGMENT AFFIRMED. (Civil Appeal No. 183003532, First Civil Chamber, Court of Appeal of Rio Grande do Sul, Reporting Judge: Adalberto Libório Barros, Decided on March 24, 1983). (TJ-RS - AC: 183003532 RS, Reporting Judge: Adalberto Libório Barros, Date of Judgment: March 24, 1983, First Civil Chamber, Date of Publication: Diário da Justiça of that day)
CIVIL APPEAL - ACTION FOR COMPENSATION FOR MORAL AND MATERIAL DAMAGES - TRAFFIC ACCIDENT - COLLISION WITH AN ANIMAL ON A LOCAL ROAD - CIVIL LIABILITY OF THE ANIMAL’S OWNER - ART. 936 OF THE CIVIL CODE - PROPERTY DAMAGES - VEHICLE DAMAGE - AWARD OF COMPENSATION EQUAL TO THE AVERAGE AMOUNT OF THE DAMAGE CAUSED - LOSS OF PROFITS - PROVEN - MORAL DAMAGES AWARDED - AMOUNT UPHELD - AMOUNT REFLECTING EDUCATIONAL/PUNITIVE PURPOSES - APPEAL PARTIALLY GRANTED. (TJ-MS - Case No. 3709 MS 2008.003709-4, Reporting Judge: Judge Paschoal Carmello Leandro, Date of Judgment: March 25, 2008, 4th Civil Panel, Date of Publication: April 24, 2008)
CIVIL LIABILITY. THE DEFENDANT’S DOGS ATTACKED THE PLAINTIFF’S DAIRY COW, RESULTING IN THE ANIMAL’S DEATH. EVIDENCE IN THE CASE FILE CORROBORATING THE PLAINTIFF’S ACCOUNT. STRICT LIABILITY OF THE DOG OWNER. Appeal granted. (Civil Appeal No. 71003577855, First Civil Appeals Panel, Appeals Panels, Reporting Judge: Ricardo Torres Hermann, Decided on May 10, 2012) (TJ-RS - Civil Appeal: 71003577855 RS, Reporting Judge: Ricardo Torres Hermann, Date of Decision: May 10, 2012, First Civil Appeals Panel, Date of Publication: Official Gazette of May 14, 2012)
CIVIL APPEAL. CIVIL LIABILITY. MORAL DAMAGES. LACK OF STANDING TO BE SUED DISMISSED. DOG BITE. STRICT LIABILITY OF THE PET OWNER, PURSUANT TO ARTICLE 936 OF THE CIVIL CODE. MORAL DAMAGES ESTABLISHED. AWARD UPHELD. 1. Preliminary objection regarding lack of standing to be sued dismissed. Although the vaccination record lists the plaintiff’s daughter as the dog’s owner, it is undisputed that the defendant has standing to be sued for the claim for damages caused by the dog’s attack, since the pet belongs to the family unit; therefore, the defendant’s standing is upheld. 2. The owner or keeper of the animal is strictly liable for damages caused to third parties, unless the victim’s exclusive fault or force majeure is proven, pursuant to Article 936 of the Civil Code, which is not the case here. 3. The evidence was sufficient to support the plaintiff’s claim that she was attacked by the defendant’s dog and that this attack resulted in physical injuries. 4. Moral damage “in re ipsa.” Non-pecuniary damages arise from the suffering and distress experienced by the victim, who was attacked by the defendant’s dog while walking on a public road. The amount of compensation is upheld as determined in the judgment, as it is appropriate for the specific case. 5. Judgment upheld. APPEAL DENIED. UNANIMOUS. (Civil Appeal No. 70059167205, Ninth Civil Chamber, Court of Justice of Rio Grande do Sul, Reporting Judge: Iris Helena Medeiros Nogueira, Ruled on May 14, 2014) (TJ-RS - AC: 70059167205 RS, Reporting Judge: Iris Helena Medeiros Nogueira, Date of Decision: May 14, 2014, Ninth Civil Chamber, Date of Publication: Diário da Justiça of May 16, 2014)
We see no reason why this paradigm shift should cause an unnecessary reversal on this issue; in other words, we see no reason to “change a winning team.” And, to fully understand our perspective, let us examine what can be gleaned from each of the cases of vicarious liability set forth in Article 932 of the Brazilian Civil Code (CCB).
First, however, we must note that liability is attributed to the responsible party without consideration of fault (Article 933 of the Brazilian Civil Code), as this is a case of strict civil liability. The agent’s liability, on the other hand, is based on subjective liability, grounded in fault, which must be proven before the system of indirect liability can be invoked.
The first and second subparagraphs of Article 932 address the liability of parents for their minor children who are in their care and custody; and the liability of guardians and curators for the acts of legally incapacitated persons, wards, and persons under curatorship who are also in their care and custody. Even here, it is necessary to determine the fault of the agents—not an abstract fault, but rather a natural fault, based on the existence of unjustified conduct that causes harm to another’s property. Thus, a minor who, having been provoked, retaliates does not fall within the scope of what we consider fault; indeed, at first glance, it is not even appropriate to speak of excessive force (except in extreme situations), since the concept of the “average person” must be adapted to the limitations of the agent. Logically, these situations must be examined with particular care by the judge, and the understanding that “natural fault” exists should serve as the basis for understanding the liability of animals (not as a model, but rather to illustrate degrees of culpability beyond the legally defined fault arising from a breach of the objective duty of care).
Subparagraphs III and IV (the employer or principal, for their employees, servants, and agents, in the performance of their duties or as a result thereof; and the owners of hotels, inns, houses, or establishments where lodging is provided for a fee, even for educational purposes, for their guests, residents, and students) are based on what is considered the classic doctrine of vicarious liability, in which there is an initial act (which must be at least negligent) and a chain of strict liability that will extend to another party’s financial interests. Here, there is clearly an initial act or omission, and if there is—at a minimum—negligence involved, another person will also be held liable.
Finally, subparagraph V (those who have participated free of charge in the proceeds of the crime, up to the corresponding amount) would be better addressed in a separate provision, since it does not concern liability from a person’s assets, but rather the return (in kind or in value) of what was received as a share of the proceeds of crime, even if there was no knowledge of or involvement in the intentional act. This is a form of liability very similar to the consequences affecting real rights, but with a distinctive feature: the assets need not still exist in the beneficiary’s estate; that is, liability is for the value and not for the assets themselves (though, logically, preference is given to the assets).
The liability of guardians of non-human animals, notwithstanding a possible change in wording, should remain governed by Article 936 of the Brazilian Civil Code (CCB), in our view, since there is no volitional structure in such cases—not even a minimal one—capable of attributing fault, even if natural, to the non-human animal. Recognizing, in this instance, an expansion of the application of Article 928 of the Brazilian Civil Code (CCB) appears, should such legislative innovation occur, to be the best complementary measure to ensure the victim’s compensation is also provided through the assets of the non-human animal.
7. Conclusions
Our journey comes to an end, but not without first briefly reviewing and revisiting what has been presented here, so that, in the end, we may arrive at conclusions that, in reality, serve as provocations for a new step forward.
Between the person and the subject, we observe that the former is one of the categories encompassed by the term “subjects of law.” This is a special category, as it is defined by including human beings as one of its central elements. The new perspective expected to emerge from Brazil’s recognition of nonhuman animals as non-personified subjects of rights will not have the power to elevate them to the status of persons, but it will establish what is today merely a “thing” as a special legal entity, endowed with specific rights aligned with their needs (such as those that will ensure a dignified death and prevent mistreatment).
In this sense, it will be necessary to recognize that legal representation is the figure best suited to the mechanisms for addressing the (physical and legal) incapacity to which animals are subject. There is no need to consider emancipation or a new category of legal ruling that recognizes special capacity, since there is no legal certainty regarding the valid and direct will of the nonhuman animal. Similarly, the concepts of assistance (since there is no will—even a basic one—to validate joint action with an assistant) or presentation are ruled out, since, in addition to the animal’s will, it will be necessary to serve the animal’s best interests, addressing both physical and legal incapacity.
Once understood as agents within the legal world, it is a prerequisite that they be recognized as holders of rights. Indeed, before transfer, there must first be title. In these writings, moving beyond the possibility of inter vivos transfers in favor of non-human animals—once they are qualified as subjects of rights—the focus has been on causa mortis transfers; and in this sense, in addition to imposing a charge in favor of the non-human animal’s well-being, it must be recognized that, following the anticipated legislative shift, they may be recognized as successors—not within the narrow scope of heirs and legatees, but as parties who may receive only a pure, simple, and liquid inheritance.
Moving beyond ownership and legal succession, we have seen that the anticipated legislative innovation may also have profound implications for the parental project. Not substantive as the former, but rather adjectival, given that the courts have been recognizing the possibility of shared custody (which we intend to replace with “shared care”) regarding pets, but giving this approach a new perspective: that of weighing the interests of the non-human animal. Not a paraphrase of the “best interests” principle applied under the Statute of the Child and Adolescent, but rather a consideration of the measure’s effectiveness and its appropriateness in relation to the non-human animal’s feelings as well.
Finally, we recognize that, in matters of civil liability, attempting to establish a new framework for liability—beyond what currently exists—would be like navigating dangerous waters with no benefit in sight. Combining Article 936 of the Brazilian Civil Code (CCB) with the subsidiary financial liability under Article 928 of the CCB seems to us to be the best course of action, based on a new categorization of non-human animals.
In closing, it is to be hoped that Brazil will finally be able to align itself with countries that recognize animals as more than mere objects. First, however, it is worth remembering that they are living beings, part of this entire planet, and recognizing their right to live their lives without being subjected to abuse or cruel treatment is an urgent measure that goes far beyond any need for legal technical progress. Humanizing the treatment of animals is yet another step on the journey of that ape who learned to think, who discovered in fire and the wheel mechanisms for the advancement of his science. A being who even managed to invent the dog need not assign to other living beings (plants, animals, etc.) a place of lesser importance for the balance of our spaceship Earth. Let us move forward, let us keep going, becoming more and more human, always!
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