The general clause on strict liability in the Brazilian Civil Code: origins, foundations, and interpretative challenges

Abstract

This article seeks to investigate the meaning and scope of the general clause of strict civil liability contained in Article 927, sole paragraph, of the Brazilian Civil Code. It proceeds from the premise that not every potential risk associated with an economic activity, whose civil liability regime has not been expressly established by law, will automatically result in the application of the strict civil liability regime. It seeks to revisit the traditional theories of risk—theory of created risk, profit risk, activity risk, and integral risk—as well as the doctrinal criteria frequently used in the interpretation of risk, namely, the price of the insurance premium, the regulation of the activity, and the qualitative and quantitative risk potential of the activity. It was concluded that these criteria developed thus far by doctrine, although they may have historically played a useful role in assisting the interpreter in investigating the just causes of objective imputation, are no longer sufficient to determine the appropriateness or otherwise of the application of the objective civil liability regime to potentially risky activities.