Dr. Ricardo Alves

“O Direito se destina aos atos lícitos; cuida dos ilícitos pela necessidade de reprimi-los e corrigir os seus efeitos

nocivos.”

Sérgio Cavalieri Filho

Civil liability, traditionally, is based on the idea of fault. Legislation defines what is understood to be culpable behavior as “voluntary action or omission, negligence or imprudence.” Recently, the theory which has been gaining ground is the so-called risk theory, which, without replacing the fault theory, encompasses many hypotheses wherein the latter is seen as insufficient for victim protection.

According to this theory, liability is met under objective terms: the party provides compensation not because they are at fault but rather because they are the lawful owner of the goods, or the party responsible for the actions that occasioned the damage.

Types of Liability

•Subjective

Liability is said to be subjective when it is based on the idea of fault. Proof of fault becomes a necessary presupposition of the compensatory damages. The burden of proof lies with the victim. Without the existence of fault (willful intent or fault in a strict sense), there is no liability.

Types of Liability

• Objective

Dispenses with fault and is only concerned with the damages and the causal link. Termed objective or risk-based, it proposes that all damages are indemnifiable and should be compensated for by the party to which a causal link may be traced, without regard to issues of fault.

Types of Liability

• Contractual

A breach of contract carries with it the responsibility to indemnify the losses and damages. Any party in breach is presumed at fault. The injured party need only demonstrate that the provisions were not met.

Types of Liability

• Extra-contractual

This is derived from the infraction of duty of care (legal obligation). It is also known as tortious liability. The burden of proof for fault or willful intent of the offending party is incumbent upon the injured party.

Presuppositions of Extra-contractual Liability

Action and omissionFault or willful intent of the agentCausal relationshipDamages

Without proof of damages, no one can be publicly liable. The damage may be to property or not, direct or indirect.

The Causality BondThe damages only generate liability when it is possible to establish a causal link between them and the perpetrator.

Liability for the Act Itself

• Breach of Duty

The objective element of a fault is a breached duty. In situations of contractual fault, legal duty consists in complying with the agreement. And, in extra-contractual fault, it consists in abiding by the law which imposes on all the duty to not assault others.

Cases:

Playing in the high school laundry roomThe homosexual – rules and processesThe Olympic Games and cell phonesThe church and elevatorsThe pathfinder and shoes

Liability for the Act Itself

• Employer Liability

The employer or principal is liable for the actions realized by their employees, servants, and representatives while engaged in the performance of their official duties. A representative, whether salaried or not, is one who follows the orders of another. Liability is objective, regardless of fault.

Liability for the Act Itself

• Educator Liability

This refers to the liability of the owners of establishments that admit people for educational purposes. Public school liability falls on the state. If the damage is caused by a student against a third party, the school is liable for the damages objectively. If a student suffers damages, this prompts an action against the establishment.

Liability for the Act Itself

• Structure Liability

Liability is presumed of the owner of a building or structure when any part of it falls onto adjoining properties or onto passers-by. The only exception is recourse against the builder. The process of compensation is made simple for the victim who need only prove the damages and the causal relation.

 

Concept and class of damage

Damages are the injury to any legal, proprietary, or moral asset. It is any impairment or diminishment that we suffer to our legal assets.Material or proprietary damages affect only the property of the aggrieved. Moral or extra-proprietary damages affect only the injured party as a human being without affecting their property. Direct damages affect only the victim; and indirect, reflective, or rebound are damages inflicted directly on another person but then reflected onto the injured party.

People who can demand compensation for damages

• In the first place, the victim or injured party, that is, the one who suffers or bears the loss.• Heirs of the victim also have the same rights, as the right to demand compensation is transferred with the inheritance.In the case of homicide, those for whom the deceased would provide maintenance and support if the deceased were alive have legitimate rights to make claims.• The rights of the partner to receive indemnity have been allowed when a stable union is proven.• Moral damage can be claimed, depending on each situation, by the actual represented client, their heirs, their spouse or partner, and the members of the family closely linked through affective ties.• The legal person can suffer moral damage and, therefore, is entitled to seek compensation through a lawsuit. Minors and legally insane individuals may also make these claims.

Consequential damage and loss of profits

To indemnify means to compensate for the damage caused to the victim in its entirety. The standard for reimbursing material damage includes paying for the consequential damage and the loss of profits.

Consequential damage: The actual damage, the diminishment of property suffered by the victimLoss of profits: The interruption of expected profits, the loss of anticipated gains, calculated based upon past data and upon previously occurring patterns.

Monetary Indemnity

In compensation for unlawful acts, the amounts of money should be provided monetarily. The amount of estimated damages should be based upon the date when the event occurred. From the date of the event onwards the changing monetary rates are to apply.

Incidence of InterestsThe ruling that decides the legitimacy of the claim will determine that the interest due be paid from the date the unlawful act was committed. This interest is legal.

Fee AmountLawyer fees are set based on a percentage of the verdict amount. When the verdict includes alimony payments, in the form of a monthly pension, the fees will be calculated on the amount of the alimony payments due, plus twelve payments to come.

Pension AccumulationCompensation that is considered a social welfare pension is also generally paid in the form of a monthly pension and would be paid even if the contributor were to die a natural death. For this reason, the amounts received, by the victim or the beneficiaries, which are accrued from social welfare institutions are not to be deducted from the compensation for an unlawful act required under common law.

Concept

Moral damages are those which affect the injured party as a person without affecting their property. It is damage to their welfare which involves personal rights, such as honor and dignity, and which occasions pain, suffering, sadness, shame, and humiliation to the victim.

Quantifying Moral Damage

In Brazil the rating standard by which the quantum of compensations is fixed is not enforced. It is largely determined by the arbitration of the judge. There is no objective and uniform standard for measuring moral damage. It falls to the judge, acting in good sense and using the facts to measure justly, to set a reasonable and fair amount for the compensation.

Special Cases of Compensation

HomicideDeath of Head of HouseholdDeath of a Wife or PartnerDeath of a Child

Bodily Injury Minor Bodily InjurySevere Bodily InjuryWork Disqualification

Exceptions from Civil Liability State of NecessitySelf DefenseExclusive Fault of the VictimThird-party ActionsActs of Providence and force majeure

 The contemporary world requires caution in living out our day-to-day lives. Every unlawful act, even those that are involuntary, committed with willful intent or fault, consequently represents the obligation to indemnify. The Seventh-day Adventist organization, in every instance, should orient its colleagues regarding the real necessity of acting cautiously when faced with a concrete incident that involves civil liability.

Contracted insurance intends to calm and assist the insured in their times of greatest trauma and insecurity; at times when “you don’t know what to do or how to behave when faced with a serious incident (present or imminent), and how to manage probable, and often severe, damages – whether present or future.”

At those times, the ARM South America team will be at your disposal, taking action and assuming all responsibility in resolving the problem, whether in administrative or legal settings.