Abstract
In the Brazilian experience, the 1988 Constitution of the Republic enshrined as the fundamentals and objectives of the Republic the principles of the Dignity of the Human Person (Article 1, III of the Constitution), Social Solidarity (Article 3, III) and Substantial Equality (Article 3, I), as well as an impressive list of basic rights inserted unrestrictedly into the system as non-derogable individual guarantees (Article 5), to be constantly complemented by the internationally recognized human rights (Article 5, § 2), included as unamendable constitutional provisions (Article 60, § 4), hence unsusceptible to revocation by legislators or even by means of constitutional reform. In terms of the Brazilian Constitution, private economic initiative must be developed along with promotion of the dignity of the human person and social justice. It also prohibits private spaces, such as the family, firm or property, from constituting a redoubt unsusceptible to state control and propitious to infringement of the constitutional project. The Constitution of the Republic intervenes directly in economic relations, the family, labor relations, firms and consumer relations, in such a way that the internationally recognized basic and human rights also become directly binding in the legal relations of private law.
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Notes
- 1.
In legal scholarship, human rights are seen as “a minimum set of rights necessary to assure the life of a human being based on freedom, equality and dignity” (Ramos 2005, 19). With regard to the somewhat redundant expression, “The redundancy of the expression “human rights”, or rights of man, is thus justified because it is a matter of required forms of conduct based essentially on the participation of all individuals of the human race, regardless of the concrete differences of an individual or social nature that are inherent to every man” (Comparato 2000a, b, 48). Similarly, see Weis (1999, 20).
- 2.
In this sense, basic rights are claimed to be “human rights recognized as such by the authorities who are given the political power to edit norms both within States and on the international level; these are the human rights positivized in Constitutions, laws and international treaties” (Comparato 2000a, 46). Nonetheless, it should be underlined that “the expressions ‘basic rights’ and ‘human rights’ (or similar), despite their being often used as synonyms, have different meanings. At least for those who prefer the term ‘human rights’, it must be ascertained – at the risk of provoking a series of mistakes – whether these are being analysed from the angle of international law or in their positive constitutional dimension” (Sarlet 2012, 35).
- 3.
“Article 4. The international relations of the Federative Republic of Brazil are governed by the following principles: (…) II – prevalence of human rights”.
- 4.
“Article 5. (…) XLI – the law shall punish any discrimination against basic rights and liberties. (…) § 1 – The application of the norms that define basic rights and guarantees is immediate”.
- 5.
“Article 5. (…) § 3 The international treaties and conventions on human rights approved in each House of the National Congress, in two sessions, by three fifths of the votes of the respective members, will be equivalent to constitutional amendments”.
- 6.
“Article 60. (…) § 4 – The draft amendment to abolish …IV – individual rights and guarantees… will not be deliberated upon (…)”.
- 7.
There is considerable distinction made between the so-called “generations” of basic rights, with first-generation rights corresponding to individual and political rights, those of the second generation dealing with social rights, and those of the third generation concerned with collective rights. Currently there is even a claim for a fourth generation of basic rights, related to genetic engineering (Bobbio 2004, 5 et seq.) or, for other authors, related to democracy, pluralism and information (Bonavides 2006, 571) and even, according to a sector of the legal scholarship, fifth-generation rights, associated with combating terrorism and preserving peace (Bobbio 2004, 5). Such classification reflects the historical and relative character of human rights, linked to the changed notion of the role of the State and the evolution of society and technologies.
- 8.
Brazilian jurisprudence even considers as imprescriptible moral damage resulting from infringements of human rights, such as torture. Oddly enough, the Superior Court of Justice (STF) recognizes that this is an infra-constitutional question (STF, Ag. Rg. no RE 715.268, 1ª T., Rel. Min. Luiz Fux, julg. 6.5.2014). The jurisprudence of the Superior Court of Justice, however, has on more than one occasion recognized the imprescritibility of moral damages resulting from torture. In this respect, see STJ, Ag. Rg. no Ag. no REsp. 85.158, 1ª T., Rel. Min. Benedito Gonçalves, julg. 18.3.2014; and also STJ, Ag. Rg. no Ag. no REsp. 266.082, 2ª T., Rel. Min. Herman Benjamin, julg. 11.6.2013, where it is stated that: “The consensus of the jurisprudence of the STJ is that the 5-year prescription provided in Article 1 of Decree 20.910/1932 is not applicable to the damages brought about by violation of basic rights which are imprescriptible, principally when they occurred during the military regime, a period when the parties subject to jurisdiction were unable to satisfactorily assert their claims”.
- 9.
According to the Folha de São Paulo newspaper, according to a survey carried out between 2001 and 2010, 98 % of the deaths in the interior of the state of Pará remained unpunished, with 61 % of assassinations not even reaching the Courts. In the rural zones of the state of Rondônia, only 45 % of the 71 deaths were processed, and only 13 % led to condemnations. As for the state of Mato Grosso, 58 % of the 50 deaths during the period reached the Courts, but 90 % received no sentence (Magalhães 2011).
- 10.
Namely, the right to physical integrity and one’s own body (Articles 13–15), the right to one’s name (Articles 16–19), publicity rights and the right to reputation (Article 20) and the right to private life (Article 21).
- 11.
As provided in Article 5, § 2, in the sense of including in the internal system the basic rights stemming from the other principles and from the democratic regime, and the human rights provided for in international treaties: “The rights and guarantees expressed in this Constitution do not exclude others resulting from the regime and principles adopted by it, or from international treaties to which the Federative Republic of Brazil is party”.
- 12.
Worth emphasizing, for example, is the fact that the opinions of the Inter-American Court of Human Rights are usually taken into account by Brazilian jurisprudence on matters of personality rights, as in the case where the STF appreciated the obligatoriness of a university degree and membership of a professional board to exercise the profession of journalist: “The Inter-American Court of Human Rights passed a decision on 13 November 1985 declaring that the obligatory nature of a university degree and affiliation to a professional association to exercise the profession of journalist infringes Article 13 of the American Convention on Human Rights, which protects freedom of expression in the broad sense (compare ‘La colegiación obligatoria de periodistas’ – Opinião Consultiva OC-5/85, de 13 de novembro de 1985). Likewise, the Organization of the American States (OAS), through the Inter-American Committee on Human Rights, understands that the requirement of a university degree in journalism, as an obligatory condition to exercise this professional, infringes the right to freedom of expression” (STF, RE 511.961, Pleno, Rel. Min. Gilmar Mendes, julg. 17.6.2009). The same was alleged in the decision that recognized homoaffective unions as family entities: “the Inter-American Court on Human Rights has for a long time recognized juridical protection conferred on life projects (see Loayza Tamayo versus Peru, Cantoral Benavides versus Peru), which is unquestionably part of the existential content of the dignity of human persons” (STF, ADI n. 4.277, Tribunal Pleno, Relator Min. Carlos Britto, julg. 5.5.2011).
- 13.
On the occasion, the Supreme Federal Court understood that “the basic rights ensured by the Constitution directly bind not only the government authorities but are also addressed to protecting private parties against private powers” (STF, RE 201.819, 2ª T., Rel. Min. Ellen Gracie, Rel. para Ac. Min. Gilmar Mendes, julg. 11.10.2005).
- 14.
According to Article 1 of Law n. 8.009/1990, “a residential property owned by a couple, or a family entity, is unseizable and will not answer for any type of civil, commercial, fiscal, welfare or any other sort of debt contracted by the spouses or parents or children who own or reside therein, except in the hypotheses provided by this law”. Nevertheless, the Supreme Court of the country extended this protection also to unmarried debtors in the understanding that the scope of the norm is not properly speaking protection of the family but rather “protection of the basic right of human persons to housing” (STF, RE 182.233, 4ª T., Rel. Min. Sálvio de Figueiredo Teixeira, julg. 6.2.2002).
- 15.
STF, Pet n. 3388, Pleno, Rel. Min. Carlos Ayres Britto, julg. 19.3.2009. In the judgment of this controversy on demarcation of the indigenous territory Raposa Serra do Sol, it was argued that “Articles 231 and 232 of the Federal Constitution have a clearly fraternal or solidarity objective, proper to a constitutional framework which is geared toward making a new type of equality effective: the civil-moral equality of minorities, keeping in mind the proto-value of community integration. This was a constitutional compensation for historically accumulated disadvantages, made feasible by official affirmative-action mechanisms. In this particular case, for the indigenous people to enjoy a territorial space to ensure them of dignified means of economic subsistence in order to more effectively enable them to preserve their somatic, linguistic and cultural identity”.
- 16.
STF, MS 24133, Pleno, Rel. Min. Carlos Velloso, Rel. para Ac. Min. Carlos Ayres Britto, julg. 20.8.2003. In this case the owner filed a writ of mandamus, which was denied, and the rural expropriation was maintained in favour of the Landless Movement, considering the INCRA inspection legitimate, proving that the land was unproductive, even when invaded to a very small extent by the landless.
- 17.
STJ, REsp. 931.060, 1ª T., Rel. Min. Benedito Gonçalves, julg. 17.12.2009, affirmed: “The Constitution of 1998, by enshrining the Democratic Rule of Law in its first article as an unchangeable clause, did so with the intention of protecting individual and social rights of the citizens through a fair government that promotes a society of equality without any distinction as to sex, race, color, creed or social class. (…) This new constitutional order, in the perspective of human rights, assures the remaining dwellers of the quilombos (ex-slave enclaves) definitive tenure to the property of which they have been in bona fide possession for over 150 (a hundred and fifty) years, in accordance with what is expressly provided in Article 68 of the Act of Transitory Constitutional Provisions”.
- 18.
By way of illustration, see STJ, Ag. Rg. no Ag. no REsp. 422.417, 4ª T., Rel. Min. Maria Isabel Gallotti, julg. 24.4.2014; and also STJ, Ag. Rg. no Ag. no REsp. 192.612, 4ª T., Rel. Min. Marco Buzzi, decided on 20.3.2014. In this last example, which dwells on the refusal of the health plan to cover radiotherapy treatment, it is argued that: “the precept of the health plan contract that excludes the cost of the necessary means and materials for the best performance of the clinical treatment or surgical procedure covered, or admission to hospital, is declared to be abusive”.
- 19.
There are very frequent hypotheses in which the government is condemned to supply medications, even admitting the procedure of sequestration for Public Finance to execute the supply. See, by way of illustration, STJ, REsp. 1.069.810, 1ª S., Rel. Min, Napoleão Nunes Maia Filho, julg. 23.10.2013.
- 20.
See, for example: “The right to health, expressly provided in the Federal Constitution of 1988 and in special legislation, is the subjective and immediately demandable guarantee of the citizen against omissions of the government. On disciplining the matter, the ordinary legislator, imposes positive obligations on the State to fulfil its legal duty. (…) The lack of vacancies in Intensive Care Units (ICUs) in the only local hospital violates the right to health and affects the existential minimum of the entire local population, making it a case of diffuse right to be protected” (STJ, REsp. 1.068.731, 2ª T., Rel. Min. Herman Benjamin, julg. 17.2.2011).
- 21.
Many times there arises some confusion between rights of publicity and privacy. One of the many example is the case in which the Superior Court of Justice (the Court responsible for harmonizing the application of infra-constitutional federal law in Brazil) recognized the moral damages suffered by a woman whose image had been shown on television news program, taken from images on file, kissing a former boyfriend with whom she had no further relationship (STJ, REsp. 1.291.865, 3ª T., Rel. Min. Sidnei Beneti, julg. 25.6.2013).
- 22.
In this respect, it has already been decided that “reserve of the possible” does not mean authorizing incompetent, negligent or insensitive administrators to degrade the dignity of people, since it is unconscionable that negligence by the state, capable of starving a citizen by denying him medical-hospital assistance, can be legitimized or justified. The excuse of ‘limited budgetary resources’ is often no more than a screen to hide the administrator’s option in favour of his private priorities instead of those set down in the Constitution and the laws, imposing his personal interest over the more urgent needs of the collective. This budgetary absurdity and aberration goes beyond and vilifies the limits of the reasonable, the frontiers of common sense and even legislated public policies; fully manageable by the Judiciary, this is absolutely not part of the administrator’s area of discretionary decisions, nor does it indicate any breach of the principle of separation of the Powers” (STJ, REsp. 1.068.731, 2ª T., Rel. Min. Herman Benjamin, julg. 17.2.2011).
- 23.
The text of the Pact of San José, Costa Rica reads as follows: “7. No one should be detained for debts. This principle does not limit the mandates of competent judiciary authorities issued because of default on child support”.
- 24.
The Brazilian Civil Code reads as follows: “Article 652. Whether the deposit is voluntary or necessary, the depositary who fails to restitute it when demanded will be obliged to do so through imprisonment of no more than a year, and repay the losses”.
- 25.
STF, Recurso Extraordinário n. 466.343, Tribunal Pleno, Relator Min. Cezar Peluso, julgado em 3.12.2008.
- 26.
The initial mark of the incorporation by Brazil of treaties on human rights is considered to be the ratification in 1989 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. Other relevant international instruments were ratified by the country under the aegis of the Constitution of 1988. According to the analysis made by Flávia Piovesan: “In addition to the constitutional innovations, one important factor for ratification of these international treaties was the need of the Brazilian State to re-organize its international agenda in order to make it more coherent with the internal changes stemming from the process of democratization. This effort is made for the purpose of showing a more positive image of Brazil in the international context as a country that respects and guarantees human rights. Also, Brazil’s subscribing to the international treaties on human rights symbolizes the country’s acceptance of the current idea of the globalization of human rights, together with the idea of the legitimacy of the concerns of the international community in this respect. Lastly, one has to add the highly universal nature of these instruments, counting as they do on significant adhesion of the other States that make up the international system” (Tratados internacionais de proteção dos direitos humanos: jurisprudência do STF. Revista do Instituto de Hermenêutica Jurídica, vol. 6, 2008).
- 27.
According to Caio Mário da Silva Pereira, this freedom comprises “the ability to enter into agreements or not, that is, the decision to decide, according to the interests and convenience of each, if and when he or she will establish a juridical contractual agreement”; “the choice of the person with whom one will enter into agreement, as well as the kind of business to be conducted”; and “the power of determining the content of the contract, drafting the provisions according to the free game of convenience of the contracting parties” (Pereira 2007, 22–23).
- 28.
“The contract obliges the contracting parties. No regret is lawful in this case; it is not lawful to revoke the contract, except in the case of mutual consent (…) the principle of the compulsory force of the contract comprises the idea that it reflects the utmost subjectivism offered by the legal system: the individual word, enunciated in conformity with the law, contains a spark of creation so strong and so deep that it does not imply retraction, and so imperious that, after gaining life, not even the State itself, except on exceptional occasions, can intervene with the aim of changing the course of effects”.
- 29.
Article 170 of the Constitution, in verbis: “Article 170. The economic order, based on the appreciation of the value of human work and on free enterprise, is intended to ensure everyone a life with dignity, in accordance with the rules of social justice, with due regard for the following principles: I – national sovereignty; II – private property; III – the social function of property; IV – free competition; V – consumer protection; VI – environment protection, which may include differentiated treatment in accordance with the environmental impact of goods and services and of their respective production and delivery processes; VII – reduction of regional and social differences; VIII – pursuit of full employment; IX – preferential treatment for small enterprises organized under Brazilian laws and having their head-office and management in Brazil. Sole paragraph. Free exercise of any economic activity is ensured to everyone, regardless of authorization from government agencies, except in the cases set forth by law”.
- 30.
Article 3 of the Constitution in verbis: “Article 3 The fundamental objectives of the Federative Republic of Brazil are:
I – to build a free, just and solidary society; (…)”.
- 31.
The aforementioned functional division in three, inspired by the duties of Roman Pretorian law, was adopted in Brazil by authoritative authors. See Azevedo (2000, 7): “This same triple function exists for the general provision of good faith in the contractual field, because the idea is precisely to help in the interpretation of the contract, adjuvandi, to fill some of the gaps in the contract, that is, to add what failed to be included in it, supplendi, and if necessary to correct something that it is not fair or just, corrigendi”. In the same sense, see Aguiar Júnior (1995, 25).
- 32.
In this area there was a paradigmatic agreement of the Tribunal of Justice of the State of Rio Grande do Sul which recognized a case of in contrahendo tort liability in the following case: “Contract. Negotiations. Culpa in contrahendo. Civil liability. Liability of the tomato-industrializing company, which distributed seeds, at the time of planting, and then manifested its intention to purchase the product, but afterwards decided, for its own convenience, not to industrialize that product in that year, resulting in damage to the farmer, who suffered the frustration of his expectations on the sale of the harvest, because he was unable to sell the product” (TJRS, Ap. Civ. 591.028.295, 5ª C.C., Rel. Des. Ruy Rosado de Aguiar Júnior, decided on June 6, 1991). The decision resolved that “A derivation of the principle of strict good faith, accepted by our legal system, (…), is the obligation of loyalty during negotiations and the subsequent liability of the party who, after creating in the other party a fair expectation on the outcome of a certain business, turns back and desists from entering coming into an agreement”.
- 33.
“Technically, these related duties that compose the core of the general provision on good faith are now imposed positively, demanding a certain behaviour from the contracting parties, either in a negative way, restricting or conditioning the exercise of a right included in the law, or in the contract itself” (Tepedino and Schreiber 2003, 37).
- 34.
- 35.
The Brazilian Civil Code establishes that: “Article 157. There is damage when a person, under urgent necessity, or due to lack of experience, is obliged to render a manifestly disproportionate consideration when compared to the value of the counter-commitment of the other party (…)”.
- 36.
The Brazilian Civil Code establishes that: “Article 317. If, by unforeseen reasons, a manifest disproportion occurs between the value of the service to be rendered and the time of the execution, the judge can correct this disproportion, upon request of the party, in order to ensure, to the extent possible, the real value of the consideration”.
- 37.
The Brazilian Civil Code establishes: “Article 478. In the contracts of continued or deferred execution, if the obligation of one of the parties becomes excessively onerous, with an extreme advantage to the other party, by virtue of extraordinary and unforeseeable situations, the debtor is allowed to request the termination of the contract. The effects of the decision that determine termination will be retroactive to the date of the summons. (…) Article 480. If in the contract the obligations correspond to only one of the parties, this party is allowed to request reduction or modification of the obligation in order to execute it and so avoid excessive onerosity”.
- 38.
The Brazilian Civil Code establishes in Article 423: “Article 423. When the adhesion contract contains ambiguous or contradictory provisions, the interpretation most favourable to the adhering party must be adopted”.
- 39.
The Brazilian Civil Code establishes in Article 424: “Article 424. In the adhesion contract, the contractual clauses by which the adherent anticipates waiving rights resulting from the nature of the business are considered null.”
- 40.
The Consumer Defense Code establishes: “Article 51. Contractual clauses concerning products and services supply shall be deemed lawfully void, among other things, when they: I. – prevent, exempt or reduce suppliers’ liability for defects of any nature in products and services or imply a renouncement or a waiver of rights. In the consumer relations between supplier and consumer – body corporate, the indemnity may be limited in justifiable situations; II. – take from the consumer the option for reimbursement of an amount already paid, in the cases provided for in this Code; III. – transfer responsibility to third parties; IV. – establish obligations understood as unfair, abusive, or that lead the consumer to an unreasonable disadvantage or those that are not consistent with good faith or equity; (…); VI. – establish the reversion of the burden of proof against consumers; VII. – determine a compulsory use of arbitration; VIII. – impose a representative to conclude or carry out another legal negotiation by consumer; IX. – leave to the supplier alone the option to conclude or not the contract, though obliging the consumer; X. – make it possible for the supplier to directly or indirectly change the price unilaterally; XI. – authorize the supplier to unilaterally cancel the contract without giving the same right to the consumer; XII. – require from the consumer the reimbursement for expenses related to the collection of his debts, without giving the same right to the consumer against the supplier; XIII. – authorize the supplier to unilaterally modify the contents or the quality of the contract after its having been entered into; XIV. – infringe or make it possible to violate environmental rules; XV. – are in disagreement with the consumer protection system; XVI. – permit waiving the indemnity right related to necessary improvements. (…)”.
- 41.
The Consumer Defense Code establishes: “Article 6 The following are consumers’ basic rights: (…) VIII – easy defence of the consumer’s rights, including reversal of the burden of proof in his favour in civil proceedings when, at the judge’s understanding, the allegation is probable or he is at a disadvantage according to the ordinary rules of experience (…)”.
- 42.
The Consumer Defense Code establishes: “Article 49. The consumer may give up a contract within a period of 7 days from its signature or reception of the good or service, whenever contracting products and services outside of a commercial establishment, especially over the telephone or at his domicile. (…)”.
- 43.
The Consumer Defense Code establishes: “Article 12. National or foreign manufacturers, producers, constructors, and importers are liable, regardless of the existence of fault, for the redress of damages caused to consumers by defects from design, manufacture, construction, assembly, formula, handling, presentation or packaging of products, as well as for improper or incomplete information about their use and risks (…)”.
- 44.
The Brazilian Civil Code establishes: “Article 944. Indemnification is measured by the extension of the damage (…)”. In this regard, it was ratified that “In the Brazilian legislation, in terms of civil liability, the value of the damages to be paid is measured according to the extension of the damages caused. Such principle, consubstantiated with Article 944 of the 2002 Civil Code, expresses the fundamental rule of civil law, incorporated to our legal tradition in the calculation of indemnification both in the 1916 Civil Code system and in the current legal text. From that assertion results the rejection of hypothetical damages, and the authors demand that payable damages have to be real (that is to say, they must have occurred at the moment the reparation is claimed) and able to be determined (that is, able to be measured economically). On the other hand, Brazilian legislation does not limit the calculation and admits indemnification of all the damages that necessarily resulted from a certain cause” (Tepedino 2012a, b, c, d, 315).
- 45.
The Brazilian Civil Code establishes as follows: “Article 403. Even when the failure to perform the obligation results from fraud of the debtor, damages shall only include the real damages suffered and the gains ceased by direct and immediate effect, without jeopardizing the provisions of procedure law”. Direct and immediate causality, however, is still mitigated in the Brazilian legislation by a specific interpretation which is usually called sub-theory of necessity: “In fact, the expression “direct and immediate” would exclude the possibility of indemnifying indirect or remote damages, creating, in certain cases, some practical problems. As a result, in the area of direct and immediate causality a theory was evolved – the sub-theory of the necessity of the cause – which considers that the expressions “indirect” or “remote” damage reveal a liaison of necessity between cause and effect. Accordingly, the obligation to repair appears when the damaging event is the necessary effect of a certain cause. In this way, indirect damages can be identified, and they are to be repaired provided they are the necessary consequence of the conduct seen as a cause” (Tepedino 2012a, b, c, d, 284). In this regard, see also Cruz (2005, passim).
- 46.
Article 5 of the Federal Constitution establishes as follows: “Article 5. (…) X – the privacy, private life, honour and publicity of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured (…)”.
- 47.
The Brazilian Civil Code determines as follows: “Article 21. The private life of the natural person is inviolable, and the judge, upon request of the interested party, will adopt the measures necessary to prevent or terminate any act contrary to this provision”.
- 48.
Incidentally, it has already been determined that: In the case of a public servant of outstanding social relevance, as in the case of a magistrate, the scope of recognition of damage against publicity and its extension is restricted, especially when a photograph is used to illustrate a pertinent press note, without invading the private life of the person that was photographed” (STJ, REsp. 801.109, 4ª T., Rel. Min. Raul Araújo, julg. 12.6.2012). The understanding of the Inter-American Court of Human Rights is usually taken into consideration by Brazilian jurisprudence in this type of issue, as seen in the following decision by the TRF-2: “It should be pointed out that the Inter-American Court of Human Rights (IACHR), when deciding on questions related to freedom of expression pays special attention to the publications that disseminate information on public servants or candidates to official positions, as it is considered that, in a democratic context, stories of collective interest should be broadly disseminated, in order to allow more control of State activities. In view of this, according to the opinion of the Court, the State must refrain from imposing limitations on news with this type of content, and similarly, agents involved must be more tolerant to criticism made regarding their activities, as they should be aware that, in view of their situation as public agents, they are subject to more surveillance and exigencies than private workers. This does not mean that these people cannot have judicial protection should they suffer unjustified attacks; still, this protection must be granted in conformity with democratic principles and to avert future fears of inhibition or censorship of those dedicated to state supervision” (TRF-2, Ap. Cív. 2005.51.01.015914-5, 5ª T.Esp., Rel. Juiz Fed. Conv. Ricardo Perlingeiro, julg. 3.4.2012).
- 49.
For a good overview of the evolutionary process, see Cavalieri Filho (2007, 78 et seq).
- 50.
The Federal Constitution establishes in Article 5, item X: “Article 5. (…) X – The privacy, private life, honor and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured”. At a later period of the jurisprudential acceptance of the moral damage, the accumulation of moral damages with the economic compensation was admitted. As an illustration in this regard, please see: “The new Charter of the Republic granted moral damages a constitutional status as it ensured, in the provisions under reference, the compensation when resulting from offense against honour and image or in the case of infringement against privacy and private life. Compensation in the case of moral damage is admitted accumulatively with material damages, as they have their own presuppositions, passing through the judicial decision both in the assessment and quantification” (STF, RE 192.593, 1ª T., Rel. Min. Ilmar Galvão, julg. 11.5.1999).
- 51.
This was the decision of the Supreme Federal Tribunal regarding the value of moral rights caused by the loss of luggage during air transportation, as included in the Warsaw Convention. “Indemnification. Moral Damage. Loss of luggage in air trip. Warsaw Convention. Observation mitigated. Federal Constitution. Supremacy. The fact that the Warsaw Convent reveals, as a rule, a tariffed indemnification for material damages does not exclude the one related to moral rights. As these rights are configured by feelings of discomfort, embarrassment, annoyance and humiliation resulting from the loss of the luggage, the provisions of the Political Charter of the Republic should be observed – items V and X of Article 5, in which they are superposed on the treaties and conventions ratified by Brazil” (STF, RE 172.720, 2ª T., Rel. Min. Marco Aurélio, julg. 6.2.1996).
- 52.
Article 944 of the Civil Code establishes as follows: “Article 944. The indemnification is measured by the extension of the damage. Sole paragraph. In case of excessive disproportion between the seriousness of the fault and the damage, the judge may, based on equity, reduce the indemnification”.
- 53.
As seen elsewhere: “the provision considers a certain hypothesis in which the damaging consequences of the tort extrapolate the effects reasonably attributable to the conduct of the agents. The concern of the legislator is then revealed as regards fair compensation, superposing on the discipline of the damage a kind of limitation on the legitimate causality, so as to authorize the magistrate, in an exceptional situation and through judgment based on equity, to extirpate from the compensation the amount that transcends the effect reasonably attributed, from the social perspective, to the account of a certain behavior” (Tepedino, in update to Pereira 2011, 101).
- 54.
By way of illustration, the Superior Court of Justice has already decided to increase the value of compensation for moral damages established by the original court, as the quantum originally established was “insufficient to repress new failures in the rendering of services” (STJ, REsp 1.171.826, 3ª T., Rel. Min. Nancy Andrighi, julg. 17.5.2011). This resource is seen by the courts to be also applicable to the “economic situation of the parties” and to the “pedagogic function of imposing indemnification in the case of an illicit act”, as in the case of criteria for establishing indemnification for moral damages (STJ, REsp. 945.369, 1ª T., Rel. Min. Denise Arruda, Rel. para Ac. Min. Benedito Gonçalves, julg. 5.10.2010. In the same vein, and referring to the “economic possibility of the offender” and to the “punitive-compensatory nature of the indemnification” as parameters, compare STJ, Ag. Rg. no REsp. 1.243.202, 4ª T., Rel. Min. Raul Araújo, julg. 16.5.2013).
- 55.
Article 5 of the Constitution establishes: “Article 5. (…) XXXII - the State shall provide, as set forth by law, for the defense of consumers (…)”.
- 56.
The Consumer Defense Code establishes the following: “Article 14. (…) Item 4. The personal responsibility of independent professionals shall be determined upon verification of the fault”. The application of the Consumer Defense Law, however, to the activities of independent professionals, authorizing the reversed onus of proof against them, end up approximating in practice their liability to the strict system, although this is said to be a case of subjective responsibility (because proof of the absence of fault is still relevant, although the faulty conduct is initially assumed). On this topic, see Rentería (2011), 111 et seq. Specifically in the case of the civil liability of physicians, Gustavo Tepedino explains: “although the liability is subjective, the tendency to broaden the obligation to compensate is extraordinarily present in jurisprudence through the mechanism of inverting the burden of proof, which is being used more and more frequently” (Tepedino 2006a, b, c, 86).
- 57.
- 58.
As argued elsewhere, “so we see a radical change in the traditional dogma of property, with the social function no longer being understood as an external limitation counterpoint to the proprietor’s (supra-legislative and sacred) freedom but as a factor that legitimizes the exercise of freedom itself, by qualifying it and justifying the owner’s action” (Tepedino 2009a, b, 138).
- 59.
The difficulties as regards considering the social function as a relevant criterion for resolving land-tenure disputes, still poorly absorbed by Brazilian jurisprudence, are addressed in detail by Dantas (2013).
- 60.
By way of illustration, see “Direito civil. Ação de reintegração de posse. Imóvel. Programa de habitação. Litígio entre particulares. Função social da posse. 1. A proteção da posse per se, quando emanada na valorização da personalidade humana, busca proporcionar a concretização dos fundamentos da constituição, como a redução das desigualdades sociais e a obtenção uma sociedade mais justa e igualitária. 2. O direito de posse auferido em programa habitacional deve ser destinado à parte que demonstrar melhor usufruir o bem, em cumprimento à função social da propriedade” (TJDFT, AC 2009 03 10 32040-3, Rel. Des. Mario-Zam Belmiro, julg. 6.2.2013). See also TJDFT, Ap.Cív. 2007.10.1.010780-6, Rel. Des. Alfeu Machado, julg. 30.11.2011; TJRJ, Ap. Cív. 0013019-58.2007.8.19.0023, Rel. Des. Custodio Tostes, julg. 20.3.2012; TJMG, Ag.Instr. 1.0024.11.193012-9/001, Rel. Des. Edivaldo George dos Santos, julg. 13.4.2012.
- 61.
See the following example in jurisprudence: “The ownership question under discussion goes beyond the limits of processual-juridical relations to reach a collectivity of people who as co-owners live peacefully in the area in question, where they raise their cattle and till the earth. The social repercussion of the demand could not be greater, the focus being on the dignity of the people who lived and economically exploited the area. Here, ownership is not only attaining one of life’s goods or satisfying some material interest, but rather a means of surviving, maintaining not one, but many families, not for one, but for many generations. (…) Nowadays the concept of social function has moved beyond the sphere of property and now also entails possession, to such an extent that now one refers to the social function of possession. In my mind, now one can ponder on the social function of possession where, as in the case under discussion, an economic objective is given to possession of the land, benefitting from natural resources for the sustenance and work of a collectivity of persons. (…)” (TJMG, 10ª C.C., Ap. Cív. 2.0000.00.492967-3/000, Rel. Des. Alberto Vilas Boas, julg. 13.12.2005).
- 62.
Both modalities are provided in the following sections of the Civil Code: “Article 1.239. A person who is not the owner of a rural or urban property and for five uninterrupted years without opposition possesses as his own an area of land in a rural zone no larger than fifty hectares, making that land productive by his or his family’s toil, and has his home there, will acquire the ownership of same”; “Art. 1.240. A person who possesses as his own for five years uninterruptedly and without any opposition an urban area of up to two hundred and fifty square meters, and uses it as his or his family’s home, will acquire dominion of such, provided he is not the owner of another urban or rural property. § 1 The deed to the property and the granting of use will be granted to the man or his wife or to both, regardless of their marital status. § 2 The right provided in the preceding paragraph will not be granted to the same possessor more than once”.
- 63.
The Brazilian Civil Code states: “Article 1.240-A. A person who exercises for 2 (two) years uninterruptedly and without any opposition direct and exclusive possession of an urban property of up to 250 m2 (two hundred and fifty square meters) and shares this possession with a former spouse or partner who has abandoned home, using it for his or his family’s residence, will acquire ownership of same, provided he is not the owner of another urban or rural property (…)”.
- 64.
This procedure dispenses with the appeal to the Judiciary for recognition of the acquisitive prescription, as provided in the law referred to: “Article 60. Without loss of the rights derived from the previously exercised possession, the holder of the deed legitimizing possession, after 5 (five) years of its being registered, may request the property registry to convert this deed into a deed of ownership, seeing that it was acquired through adverse possession in accordance with Article 183 of the Federal Constitution. § 1. To request the conversion provided above, the acquirer must present: I – certificates from the distributing notary’s office showing the non-existence of ongoing actions concerning possession or property of the property; II – declaration that he does not possess any other urban or rural property; III – declaration that the property is used as his or his family’s residence; and IV – declaration that he had no previous recognition of the right to ownership of properties in urban areas. § 2 The certificates provided in sub-item I of § 1o will be relative to the total area and will be provided by the government authorities. (…)”.
- 65.
The law in question reads as follows: “Article 1 The couple’s, or family’s, actual residential property is unseizable and is not responsible for any kind of civil, commercial, fiscal or welfare debt contracted by the couple, parents or children who are its owners and reside therein, except in the hypotheses provided in this law (…)”.
- 66.
The Brazilian Civil Code states: “Article 1.723. A family entity is recognized to be the stable union between a man and a woman configured in public, continuous and lasting cohabitation for the purpose of constituting a family (…)”.
- 67.
This is the joint decision in the Direct Action of Unconstitutionality (ADIn) n. 4.277 and the Action for Non-fulfilment of Fundamental Precept (ADPF) n. 132, both reported by Justice Carlos Ayres Britto.
- 68.
Above-mentioned Article 226, §6, was originally worded as follows: “Civil marriage can be dissolved by divorce after prior judicial separation of more than a year in the cases expressed in law, or factually proven separation for more than two years”. Consequent to the Constitutional Amendment, the article provided simply that “civil marriage can be dissolved by divorce”.
- 69.
The Federal Constitution provides the following: “Article 227. It is the duty of the family, society and the State to guarantee with absolute priority to children, adolescents and the young the right to life, health food, education, leisure, professional training, culture, dignity, respect, freedom and family and community living-together, besides protecting them from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression”.
- 70.
The Child and Adolescent Statute sets forth the following: “Article 4. It is the duty of the family, the community, society in general and the government to guarantee with absolute priority effective exercise of the right to life, health, food, education, sport, leisure, professional training, culture, dignity, respect, freedom and family and community living-together”.
- 71.
The Brazilian Civil Code states that: “Article 1.790. A partner will take part in the succession of the other partner in respect to the goods acquired at cost during the stable union, in the following conditions: I – if there is concurrence with children in common, the partner will be entitled to a quota equivalent to that which by law is granted to the children; II – if there is concurrence with descendants only of the author of the inheritance, the partner will have the right to half of what is given to each one of them; III – if there is concurrence with other relatives entitled to succeed, the partner shall have the right to one third of the inheritance; IV – if there are no relatives entitled to succeed, the partner shall be entitled to the entire inheritance”. Compare this provision with the articles that deal with succession by the surviving spouse: “Article 1.832. In concurrence with descendants (…), the spouse will be entitled to a portion equal to that of each of those who succeed, such portion not being inferior to a fourth part of the inheritance, if the person is an ascendant of the heirs with whom he/she concurs. (…) Art. 1.837. If concurring with a first-degree ascendant, the spouse will be granted one third of the inheritance and one half if there is only one ascendant, or if that degree is greater. Article 1.838. In the absence of descendants and ascendants, succession will be granted in its entirety to the surviving spouse”.
- 72.
On this matter, see Nevares (2006, 163–164). On the same subject, Tepedino (2012a, b, c, d), 153), where a claim is made for “the illegitimacy of the codified option, which runs counter to the tendency to protect family pluralities (Article 226, §3, CF) by granting differentiated treatment as regards the hereditary succession of the spouse and partner, resulting in the unconstitutionality of Article 1.790”.
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Tepedino, G. (2016). Human Rights in Private Law: The Brazilian Experience. In: Trstenjak, V., Weingerl, P. (eds) The Influence of Human Rights and Basic Rights in Private Law. Ius Comparatum - Global Studies in Comparative Law, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-25337-4_4
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