1. Introduction
For some time now, scholars of civil law have been questioning whether, within the realm of extracontractual liability, there is room for compensation that goes beyond the compensatory function for damages, in cases where no actual loss has occurred, but a person incurs expenses with the aim of preventing harm from affecting an interest worthy of protection. In this context, legal scholarship must find a justification for broadening the concept of damage or, alternatively, develop a methodologically sound approach capable of supporting compensation that covers preventive expenses incurred to avoid consequential damages resulting from an unlawful act.
In a study dedicated to this topic from the perspective of English Private Law, titled “Preventive Damages,” Donal Nolan uses an example to explore this thought-provoking subject. The author draws on the case of the “pine forest fire”: B negligently allows a fire that started on his property to spread and get out of control, threatening to reach A’s neighboring property and destroy his valuable pine forest. Alerted to the danger, A hires a specialized firefighting crew that battles the flames at the boundary between the two properties and successfully prevents the fire from entering his property and causing damage. Since the fire never entered A’s land, B did not commit a conventional tort—such as negligence or nuisance. Nevertheless, can A recover the expenses incurred from B?1 Or rather, can a rule allowing for the recovery of preventive expenses be reconciled with the general rules of civil liability? And if preventive expenses can be recovered, on what grounds will this occur?
Perhaps the solution lies in shifting the focus away from compensation for damages caused by the defendant and toward the tort suffered by the plaintiff, envisioning an expansion of the scope of extracontractual liability in which compensation would not serve primarily to mitigate damages, but rather to prevent unlawful conduct, remove unlawful profits, or reimburse expenses arising from an act contrary to law.
2. First Option: The Preventive Function of Civil Liability
The example of the forest fire does not relate to a pure and simple unlawful omission, but rather to a tort committed by omission. That is to say, the omission itself triggered the causal chain, and the owner of the land from which the fire spreads refrained from taking the necessary measures to ensure that his activity would not cause harm, thereby contributing to the dangerous situation. In this case, the proper cause of the result is precisely the omission itself. The omission is not merely a contributing cause of the damages. Consequently, the costs of prevention are borne by the party who failed to take the necessary precautions to ensure that their activity would not cause harm.
There is a natural tendency to justify compensation for the owner of the adjacent property based on the preventive function of civil liability. This is the approach adopted by common law jurisdictions, where conventional torts require actual damage to qualify as torts and allow the compensatory function of civil liability to apply. The reverse is also true: certain torts, such as trespass to land or private nuisance—both of which constitute disproportionate interference with the enjoyment of another’s property—do not require a finding of damage, since the violation of the plaintiff’s sphere constitutes the tort per se. However, in the example of the pine forest, there was no tort of trespass, and the expenses that were reasonably incurred in advance to prevent the imminent infringement of another’s rights correspond to a kind of extension of an injunction.2
For this very reason, §919 of the American Law Institute’s Second Restatement of Torts provides that: “In determining whether expenses incurred to prevent damage were reasonable, one must consider the severity of the imminent harm, the degree of probability that it will occur, and the likely expense incurred by the person under threat.”
The merit of this reasoning lies in an acknowledgment of the functionalization of civil liability: from a model exclusively aimed at mitigating damages to a mechanism for curbing unlawful conduct, thereby deterring the wrongdoer from committing torts and, simultaneously, recognizing the merit of the conduct of the person who mitigates the damage by incurring expenses in advance. Compensation is not the sole objective of tort law, which calls for a dynamic balance between compensation and the deterrent function—a function increasingly viewed within a broader conception of the instrumental impact of civil liability. Furthermore, resorting to preventive damages would be less burdensome than resorting to a preventive injunction: whereas injunctions are available before the harm occurs and require a certain course of conduct, preventive damages are only awarded when the wrongdoer engages in conduct that causes harm, and, like injunctions, are designed to prevent future infringements of protected rights.3
We would have no difficulty dealing with this idea within a broad conception of preventive relief, as a side effect of any damages award, given that the idea of specific deterrence (against the wrongdoer) and general deterrence (against potential wrongdoers) underlies any judgment, even purely compensatory ones, devoid of any punitive or exemplary damages.
Nevertheless, in the strict sense of the preventive function—as embodied by injunctive relief and the removal of the tort—the protection is directed, respectively, against the likelihood of a tort and the tort that has already been committed, since the likelihood of harm and the harm itself lie outside its scope of liability. Harm is a prerequisite for compensatory relief, whether in the specific form or in an amount equivalent to the value of the harm.4 A’s objective in the example cited was not to prevent B from committing or repeating the tort, but rather to avoid the feared harmful event—an issue that does not constitute the basis for a genuinely preventive remedy. In the Brazilian legal context, the sole paragraph of Article 497 of the Code of Civil Procedure (CPC) states: “For the granting of a specific injunction intended to prevent the commission, repetition, or continuation of a tort, or its removal, it is irrelevant to demonstrate the occurrence of damage or the existence of negligence or willful misconduct.” If this is the essence of a genuinely preventive injunction, there is no room for discussion regarding the expenses incurred by the plaintiff to prevent or mitigate the feared harm.
If our position is to reject the compensatory or purely injunctive nature of the remedy of “preventive damages,” it is imperative to identify an alternative solution. In our view, the legal model of “preventive damages” aligns with a type of restitutory remedy. It is not a claim aimed at compensating for damage, but rather a claim designed to restore the plaintiff’s assets to their pre-tort state, based on objective criteria that affirm the reasonableness of the expenses incurred due to the violation of a right in light of the probability of harm, regardless of whether such harm is actually established. We adopt here a broader concept of the principle of full compensation, which is not limited to the transfer of damages from the wrongdoer’s assets to those of the wronged party, but rather one of restoring the financial balance between the parties—within the framework of corrective justice—which will also be achieved through the restitution of gains obtained by the defendant through the commission of the tort, or, furthermore, through the restitution of expenses not borne by the defendant at the time of the infringement of another’s right, including expenses that the plaintiff reasonably incurred in advance to prevent such infringement.
In our view, compensation for preventive expenses related to the forest fire constitutes a monetary award that serves as restitution for the tort. The common law model of preventive damages covers a range of cases in which the plaintiff’s objective is to recover expenses incurred to prevent the defendant from committing a conventional tort.
If B is ordered to reimburse the expenses incurred by owner A, how can we define the basis for such compensation? This is not a case of damages in the strict sense of the compensatory function, given that A’s property was not consumed by the fire, not even partially. However, there was an infringement of a property interest deserving of protection on the part of the plaintiff, which entitles him to a claim against B. Consequently, it is appropriate to invoke a legal remedy that goes beyond the surface of the damage and can be applied within the limits of civil liability.
Furthermore, with regard to infringements on property rights—specifically in the context of neighbors’ rights under the Civil Code of 2002 (CC/02)—Article 1283 provides that “Tree roots and branches that extend beyond the property line may be cut, up to the vertical dividing plane, by the owner of the encroached-upon property.” Thus, if the roots of a neighbor’s tree threaten to cause structural damage to the neighboring property, the law provides for self-help, regardless of whether there is actual harm or nuisance to the neighbor, authorizing the affected property owner to act based on the principle of freedom.5 However, the provision makes no mention of a potential claim to be brought in court, in which the neighbor affected by the encroachment would seek reimbursement for preventive expenses.
In the discussion of preventive expenses, in addition to references to the options adopted by common law jurisdictions, it is worth noting the Brazilian exception of “self-help regarding obligations to perform.” According to Article 249 of the Civil Code of 2002 (CC/02): “If the act can be performed by a third party, the creditor shall be free to have it performed at the debtor’s expense in the event of the debtor’s refusal or default, without prejudice to any applicable compensation. Sole paragraph. In cases of urgency, the creditor may, regardless of judicial authorization, perform the act or have it performed, and shall subsequently be reimbursed.” In principle, this provision appears to apply immediately to the preventive enforcement of contractual obligations. We illustrate its application with the example of contracting a company to demolish a building at imminent risk of collapse, which unjustifiably fails to fulfill its obligation to perform. The creditor (the building’s owner) may himself direct another company to perform the omitted act without needing to obtain judicial authorization, as would originally be required in such cases. Only afterward will the creditor seek compensation for damages resulting from the breach and for the amounts paid to carry out the work, thereby converting the original obligation to perform into an obligation to reimburse the corresponding amount.
Beyond the term “creditor,” the interpretation of the sole paragraph allows for extension to the realm of tort law, applying to situations involving a probable risk of harm to third parties. Continuing with the same example, the neighbor of a building that is in danger of collapsing also has standing to incur preventive expenses in the face of the neighboring owner’s failure to voluntarily carry out structural reinforcement work. The CC/02 presumes the urgency of incurring preventive expenses in the face of inaction by the party who should bear such costs. As Paulo Lôbo clearly explains, the debtor may prove in court that there was no urgency and, therefore, is not obligated to reimburse the preventive expenses.6 In any case, the error in the wording lies in the use of the word “compensated” instead of “reimbursed,” since this is not a matter of relief against damage, but rather restitutionary compensation for expenses.
3. Our Position: Preventive Indemnification as a Restitutory Remedy in Civil Liability
Our position regarding the preventive expenses incurred by the plaintiff is based on the notion that corrective justice transcends the task of compensating for damages, sometimes requiring a broader effort consisting of restoring the victim’s assets to their pre-tort state. This occurs when damages have not been identified, but the unlawful conduct results in unjust enrichment for the wrongdoer, or the wrongdoer benefits from a savings in expenses, or even when the need to avert imminent harm requires the person exposed to economic loss and/or harm to their physical and mental well-being to incur preventive expenses.
What is important is that there be an objective criterion affirming the reasonableness of the expenses incurred, a solution provided by the Civil Code of Slovakia in § 419: “Any person who has borne the cost of averting imminent harm shall be entitled to reimbursement of the costs reasonably incurred and to compensation for any damages suffered, including against the person in whose interest they acted, in particular and to the extent that the harm was averted.” This provision correctly distinguishes the restitutory function of civil liability (reimbursement of costs) from the claim for compensation for any damages suffered, making it clear that restitution is independent of the success of the preventive measures.
Admittedly, we cannot generalize to the point of asserting that the entire cost of preventing harmful interference with the plaintiff’s person or property is linked to a restitutionary remedy. We exclude, prima facie, those cases in which the expenses incurred by the plaintiff relate to mitigating damages occurring after the harmful event, in order to prevent the initial injuries from worsening (e.g., expenses for a surgical procedure to mitigate the consequences of a physical assault). What is referred to as “mitigation damages”7does not concern us, given that it operates in a context subsequent to the violation of the defendant’s property or existential interest, in which the wrongdoer will have to bear not only the losses but also the mitigation costs.
We recognize the importance of rules drafted to distinguish between restitutory and compensatory remedies in the field of civil liability. Nevertheless, we believe that the best alternative is a systemic one. In fact, to establish preventive damages as an autonomous remedy in civil liability, it is not enough to distinguish this legal model from compensatory remedies (through the concept of abstract harm) or preventive remedies (as a variation of injunctive relief). It is necessary to find legislative support, and this will only be possible through a reinterpretation of the principle of full compensation. The concept of damages must be made more functional, so that it can best address the relational dimension that inspires the principle of full compensation. The goal of hypothetically “restoring” the parties to their pre-tort state demands a bilateral analysis that, in addition to the wrongdoer, takes into account the position of the agent.8 To the extent that the wrongdoer obtained an unlawful profit, saved expenses by violating a certain legal position, or the plaintiff incurred expenses that they would not have incurred had the wrongful act not occurred, naturally, “best compensation” must include, among its alternative criteria, the reimbursement of expenses or the recovery of economic benefits, lest we violate the corrective justice that underlies restitutio in integro. Whether the focus is on losses or on preventive expenses, the restoration of the existing situation finds its basis in the relational dimension of the obligation to compensate, limited to the bilateral nature of the reasons pertaining to the parties.
The essence of Aristotelian philosophy lies in the need to restore balance in a relationship compromised by an unjust act. The two parties, in their losses and gains, are connected by the concept of synallagma, and the wrongdoer and the wronged party form a legal relationship arising from the wrongful act, from which all other members of society are excluded, since, due to an injustice, only the injured party has a claim to the wrongdoer’s gains. However, even today we maintain a unilateral perspective on the problem, since corrective justice has been examined from a Thomistic perspective, centered on the neutralization of losses to the detriment of the Aristotelian approach.
The instrumentalist aspect of civil liability is enriched if we shift the focus from the damage to the tort and associate it with remedies. The remedies of civil liability are the result of a balancing of interests on both sides and not merely a reflexive response to an unfavorable turn of events. Thus, by broadening the scope of actions for damages—now understood as monetary awards for non-contractual obligations that serve the purpose of restoring the synallagma between plaintiff and defendant—we can address the phenomenon of wrongfulness in three ways: a) restoring the plaintiff to the situation prior to the unjust harm through compensatory relief; b) restoration of both parties to the situation prior to the tort through the remedy of setting a reasonable price or by reimbursing the expenses incurred by the plaintiff as a result of the unauthorized interference with their patrimonial or existential sphere; c) restoring the defendant to the situation prior to the unlawful gain by removing the profits derived from the violation of the plaintiff’s protected interests.
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- NOLAN, Donal. Preventive damages, p. 132. Law Quarterly Review 68-95. Exemplo extraído do caso New Zealand Forest Products v O'Sullivan, [1974] 2 N.Z.L.R. 80.
- OLIPHANT, Ken. Basic questions of tort law from the perspective of England and the commonwealth, in KOZIOL, Helmut (ed), basic questions of tort law, p. 373.
- GREEN, Michael; CARDI, W. Jonathan. Basic questions of tort law from the perspective of USA, in KOZIOL, Helmut (ed), basic questions of tort law, p. 448.
- MARINONI, Luiz Guilherme; ARENHART, Sérgio Cruz e MITIDIERO, Daniel. Novo Código de Processo Civil Comentado, p. 504. São Paulo, 2017, Revista dos Tribunais.
- GOMES, Orlando. Direitos reais, 20 ed, p. 213. São Paulo, Editora Saraiva, 2018.
- LÔBO, Paulo Luiz Netto. Teoria geral das obrigações, Saraiva, São Paulo, p. 117.
- Tort damages. Louis Visscher, Rotterdam Institute of Law and Economics (RILE) Working Paper Series No. 2008/02, p. 18.
- In this regard, Article 562 of the Portuguese Civil Code states: “Anyone obligated to compensate for damage must restore the situation that would have existed had the event giving rise to the obligation to compensate not occurred.”