Equity and reduction of indemnity: mitigation of the principle of full compensation according to the grade of tortfeasor's fault

• Grant number: 15/04827-2
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: May 01, 2015
• End date: April 30, 2016
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Claudio Luiz Bueno de Godoy
• Grantee: Bruno de Ávila Borgarelli
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The Brazilian Civil Code of 2002 introduced substantial changes in the theme of civil liability. One of this changes is in article 944, single paragraph, which introduces a exception to the traditional rule that the indemnity is always measured by the extent of the damage, accepting the evaluation of the grade of tortfeasor's fault as a criterion of the indemnity amount, which can be reduced on the basis of equity. But this new exception generates doubts, particularly about the criteria that the judge must resort to enforce the rule, as well as the extent of this application.The lawgiver of 2002 didn't indicate these criteria, only asserting the requisite of the disproportion between the tortfeasor's fault and the damage, to be verified in each case, and the application of equity. For example, the legislator didn't mention the need to assess the economic situation of the people involved in the case, as well as the degree of judicial discretion in this situation. The doctrine, in turn, has created different perspectives, giving rise to controversies that need to be further examined. The solution of these problems and the establishment of the criteria to be adopted in order to reduce the indemnity, according to the principle of equity, is what we intend with the research.