Civil liability for loss of a chance in Brazilian law
Keywords:
Civil liability, Loss of a chance, Emerging damage, Autonomous damage, Partial causality.Abstract
This paper addresses the theme of civil liability for the loss of a chance in Brazilian Law. It examines the compatibility of of this law with the theory developed in France, Italy, and member countries of the Commom Law System, according to a conception of civil liability based on a solidarist paradigm, aimed at providing remedial compensation for an unfair damage. The loss of a chance is found to match the assumptions of civil liability. The analysis of the manifestation of the Brazilian doctrine and jurisprudence, compared with foreign institutes is carried out aiming to demonstrate the features of civil liability for loss of a chance and its legal nature. Such a configuration requires not only that the misssed chances be only serious and real, not hypothetical, but also that the amount of damages claimed be smaller than the final damage. Concerning legal nature, the findings indicate that the definition is not clear in Brazilian doctrine and jurisprudence yet, which either classifies it as a loss of profit, or as pain and suffering damages. Thus, the thorough scrutiny of the debates generated by the comparative doctrine indicates that there are two kinds of loss of a chance, each implying its distinctive legal nature. One evidences an emerging and autonomous damage, or pain and suffering damage, while the other resorts to a more flexible concept of causation, relying on partial causality. The compensation for the loss of a chance should be undertaken alligned with its legal nature to prevent wrongful convictions.Downloads
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