There are essentially two reasons why there is a trend toward replacing the traditional term “civil liability” with “law of damages”: the first stems from the phenomenon of paving the way for the objectification of liability for damages, gradually achieved by removing the traditional barriers to the obligation to compensate, namely: the requirement to establish a tortious act, fault, and, in extreme cases, a causal link, through presumptions of causality that attribute liability to a party obligated to pay, whether that party is the agent, the party engaged in an inherently risky activity, or an insurer (whether contractual or statutory). Thus, the judge’s primary task in claims for compensation consists of assessing whether there is unjustified harm—that is, an injury to an interest worthy of protection—by balancing the interests of the wrongdoer and the injured party.
However, we draw attention to the second reason for the shift of civil liability’s focus to the harmful legal fact: this is a symptom of the proliferation of damages. We are experiencing a “big bang” of interests deserving of protection, with an abundance of new labels, most of which are the result of legal imports, without the necessary reflection on whether such transplants are appropriate for the Brazilian legal system. It is evident that the binary formula adopted by the 1988 Constitution (Art. 5, V) is insufficient to encompass the scope of civil liability in 2020. Thirty-two years ago, the constitutional enshrinement of the material/moral damages dichotomy represented the consolidation of a civilizational advance in the face of the classic objection to the compensability of harm to existential circumstances—a vigorous step toward the personalization of private law and broader protection against violations of fundamental rights. Nevertheless, it is time to move forward.
In fact, pecuniary damage has transcended the bifurcated framework of actual damages and loss of profits, and is now addressed with greater technical rigor. On the other hand, we can use these lines of reasoning to develop a basic typology of non-pecuniary damages, based on the premise that, even within the reality of our open legal system—grounded in the general clause of Article 186 of the Civil Code —it is no longer possible to maintain that moral damages and non-pecuniary damages are synonymous. Experience shows that the principle of full compensation is violated when moral damages are considered in a generic manner across a wide range of situations, without the slightest attention to specifying which non-pecuniary damages are the subject of the decision. Furthermore, the mere invocation of generic terms without providing appropriate clarification and arguing why their use is relevant in the specific case does not constitute a valid basis for a judgment (Article 489, Code of Civil Procedure).
To move beyond the traditional approach in Brazilian law, in which moral damages and non-pecuniary damages are considered equivalent —as if they were two sides of the same square—henceforth, for Brazilian civil law, I maintain the existence of a genus, “non-pecuniary damage,” divided into four types, namely: damage to image; aesthetic damage; existential damage; and moral damages. This is obviously not an exhaustive classification, as different labels will inevitably emerge over time; nevertheless, we believe that the “Zeitgeist” points toward a four-part classification of non-pecuniary damages, defined, in a broad sense, as an injury to an existential interest that concretely merits legal protection. This conceptual scope offers three advantages: a) it provides the judge with leeway to weigh interests according to the specific circumstances of each case, allowing the reasoning to form the judicial response to the arguments presented by the parties regarding the grounds for ruling one way or the other; b) it allows legal scholarship to develop objective criteria to guide judicial decision-making in the face of inevitable tensions between fundamental rights; c) it breathes new life into the general clause of Article 186 of the Civil Code, making it receptive to substantial arguments that enrich constitutional norms, such as compensation for failure to exercise due care in family relationships (Art. 226, CF) and damages arising from the right to be forgotten in the information society (Art. 220, § 1, CF).
Aesthetic damage is not only established as a distinct category separate from moral and pecuniary damages (Precedent 387/STJ), but its scope has also been expanded. While initially it was limited to the “disfigurement” of the victim due to scars and injuries caused by a harmful event, the decision in the Lars Grael case (AG No. 638.763/RJ), in 2007, consolidated the approach to aesthetic damages as a morphological transformation of the victim (in that case, the sailor’s severed leg), for which compensation is independent of the amount awarded for moral damages justified by the evident psychological distress resulting from the serious harm to physical integrity. From a more contemporary perspective, aesthetic damage takes on a functional significance, perceived as a significant physical imbalance inflicted upon the individual. The loss of a spleen, blindness, and deafness do not represent a “disfigurement” or even a change in physical appearance, but they do affect the body’s functionality, justifying compensation that goes beyond moral damages and bringing aesthetic damage closer to damage to health or bodily injury.
The Federal Constitution already recognized image damage as distinct from property damage and moral damages. However, it seems appropriate to us to classify image damage as a type of non-pecuniary damage, which may eventually have economic repercussions (Precedent 403/STJ), without the economic consequences of the unauthorized use of an image—whether through compensation for damages or restitution of ill-gotten gains—distorting its essence. In fact, since this involves the protection of a specific personality right, the unauthorized capture of another person’s image is sufficient to cause harm, regardless of any injury to the victim’s honor or privacy. The Maitê Proença precedent (REsp 764735/RJ) highlights the self-sufficiency of image-related harm, as the unauthorized publication of nude photos of her by a media outlet constitutes harm “per se”, in addition to being combined with an award for moral damages, should there be proven damage to her credibility or should the image have been captured in an intimate context.
In terms of legal recognition, existential harm is the most recent addition to the category of non-pecuniary damages. The labor reform (Law 13.467/17) introduced Article 223-B, explicitly establishing non-pecuniary damages as a category, with moral damages and existential damages as its subcategories. This can be defined as a significant detrimental change in a person’s life resulting from a harmful event. One need only imagine an electric shock suffered by a cable worker with serious and irreversible consequences for his daily life: difficulties eating, dressing, and performing basic daily tasks. I would venture to say that the distinction between moral damages and existential damages is more difficult to make than that between damage to one’s image and aesthetic damages. With regard to these concepts, the difference is qualitative: moral damages operate by exclusion, applying whenever the harm to an existential interest that is concretely deserving of protection does not occur in the context of the unauthorized capture of an image or of organic functionality. Thus, offenses against reputation, privacy, and psychological integrity still fall within the scope of moral damage in the strict sense. Nevertheless, the distinction between moral damages and existential damages is quantitative: moral damages result from a violation of personality whose harmful consequences are limited to the event itself; in contrast, existential harm is measured by the persistence of its harmful effects on one’s productivity, dynamism, and quality of life. From a doctrinal perspective, one may debate the applicability of the dies a quo of the three-year statute of limitations under the Civil Code to cases of existential harm. In practical terms, this distinction will be reflected in the desirable proportionality of compensation amounts, justifying awards of more substantial amounts in cases of existential harm compared to cases involving moral damages, thereby eliminating the undue tendency to inflate moral damages through the addition of punitive criteria (e.g., the degree of fault of the wrongdoer, their financial capacity, and/or repeated commission of torts of that nature) as a means of increasing the compensatory amount, which must always be limited to restoring the victim’s financial situation to a state as close as possible to that prior to the tort. Furthermore, defining the boundaries of the concept of existential harm serves an educational purpose, highlighting the inappropriateness of applying the theory of loss of a chance beyond the realm of property relations.
Some might add the concepts of damage to one’s life plan and damage to life in relation to the direct lineage of non-pecuniary damages. I prefer to exercise a bit more caution in handling these promising legal models. It seems to me that, within the vicissitudes of the Brazilian legal system, both of these concepts fit within the category of existential harm and, consequently, are second-degree derivatives of non-pecuniary damages. Damage to one’s life plan concerns the options and possibilities for personal fulfillment that have been thwarted in the face of a major harm. An eloquent example is the phenomenon of “deterritorialization” in the Bento Rodrigues District in Minas Gerais, devastated by the ecological disaster caused by Vale do Rio Doce. Each resident of that area did not merely suffer moral damage; in fact, their lives were profoundly impacted not only in relation to the past (in their memories), but the loss of points of reference represented an abrupt rupture in their life trajectories, which will now be reinterpreted. On the other hand, harm to life in relation to others is the projection of existential harm in the first-person plural. For example, parental alienation is an unlawful act (Art. 6, Law 12.318/10) that discredits one of the parents in the eyes of the child and is therefore classified as moral damage (affecting both the alienated parent and the child). However, the repetition of this unlawful conduct over the years can result in parental alienation syndrome. More than just psychological harm to the child, this constitutes harm to life in relation, insofar as the parenting project is thwarted. Finally, the models of harm to one’s life project (“myself”) and harm to life in relation to others (“ourselves”) do not exhaust the possibilities of existential harm, but they greatly simplify the line of reasoning in countless decisions on the subject.
Our suggestion regarding an open typology of non-pecuniary damages is merely an attempt to map an inhospitable zone of Brazilian civil liability—justifiably averse to the rigidity of the “numerus clausus” (a problem faced by Italian law), without this preventing legal scholarship from identifying common elements among the inexhaustible manifestations of human subjectivity, in order to delineate categories capable of offering a greater degree of predictability to judicial decisions. The purpose of establishing a taxonomy is to facilitate, as much as possible, full redress, thereby preventing the broad scope of the term “moral damages” from turning into a “war of labels,” to the point where non-pecuniary damages become anything and anything becomes nothing… or rather, as Guimarães Rosa reminds us, “a soundless whisper where we remember what we never knew.”
Article originally published on April 23, 2020