Civil liability: equity as a parameter for fixing compensation in the event of excessive disproportion between the seriousness of the fault and the damage

Abstract

Civil liability is among the most instigating, complex and relevant themes of Modern Law, including the Brazilian one. The research aims at analyzing the reflexes of equity foreseen in the sole paragraph of article 944 of the Civil Code of 2002 in the scope of civil liability. The 2002 Code,
compared to the 1916 Civil Code, is considered an open normative document, full of general clauses and undetermined legal concepts. Equity, among other meanings, as a corrective to the law, can be seen as the justice of the concrete case. Provided for in the 2002 Civil Code, equity confers, in line with the principle of operability, an expansion of the interpretive power of the judge. This reveals that its systematic study is important, especially focusing on its influence on the principle of integral reparation of damage inherent to civil liability. The method used is the hypothetical-deductive one, based on legislation, doctrine and jurisprudence. It concludes that, in the area of civil liability, the equity provided for in the sole paragraph of Article 944 of the Civil Code of 2002 constitutes an effective parameter for establishing compensation in the event of excessive disproportion between the seriousness of the fault and the damage, whether in relation to subjective or objective liability.

Keywords: Equity. Indemnity. Judge’s interpretive power. Principle of operability. Civil liability.