Tort Terms in Brazilian Law

Introduction

This glossary defines key terms in Brazilian tort law (responsabilidade civil), governing compensation for damages caused by wrongful conduct or dangerous activities. The Civil Code of 2002 provides the general framework, supplemented by the Consumer Protection Code and other special legislation.

Ato Ilícito

Unlawful act (ato ilícito, Article 186, Civil Code) is a voluntary act or omission that: (i) violates a right; (ii) causes damage to another; and (iii) is committed with fault (intent or negligence). Article 188 excludes unlawfulness for acts in: self-defense, regular exercise of a right, and removal of danger.

Responsabilidade Civil

Civil liability (responsabilidade civil) is the obligation to compensate for damages caused by an unlawful act or by activities that create risk. It may be: (i) subjective (subjetiva), requiring proof of fault; or (ii) objective (objetiva), based on strict liability without proof of fault.

Responsabilidade Subjetiva

Subjective liability (responsabilidade subjetiva) requires proof of: (i) unlawful conduct; (ii) fault (culpa); (iii) damage (dano); and (iv) causal link (nexo causal). Fault includes both intent (dolo) and negligence (culpa stricto sensu). Most medical liability is subjective.

Responsabilidade Objetiva

Objective liability (responsabilidade objetiva) imposes liability without proof of fault, based on the risk theory (teoria do risco). Under Article 927, sole paragraph, strict liability applies when the nature of the activity normally creates risk. Objective liability also applies in: (i) consumer relations (CDC); (ii) environmental damage (Law 6.938/1981); and (iii) state liability (Article 37, §6, Constitution).

Dano Moral

Non-pecuniary/moral damages (dano moral) compensate for intangible harm, including pain, suffering, reputational injury, and violation of personal rights. The STJ has established criteria for quantification: (i) intensity of suffering; (ii) degree of fault; (iii) parties’ economic capacity; and (iv) social impact. Moral damages are assessed separately from material damages and may be cumulative.

Dano Material

Material damages (danos materiais) are pecuniary losses including: (i) actual damages (danos emergentes) — the direct loss; and (ii) lost profits (lucros cessantes) — what the victim would reasonably have earned. Material damages are measured by the theory of direct and immediate causation (teoria dos danos diretos e imediatos).

Nexo Causal

Causal link (nexo causal) is the causal connection between the conduct and the damage. Brazilian law adopts the theory of necessary causation (teoria da causalidade necessária), also known as the conditio sine qua non theory, as the primary test, with the theory of adequate causation (teoria da causalidade adequada) applied subsidiarily.

Culpa

Fault (culpa) encompasses both intent (dolo) and negligence (culpa stricto sensu). Negligence is assessed objectively, based on the standard of the reasonable person (homem médio). The degree of fault (slight, ordinary, gross) affects liability, though Article 944 provides that compensation is primarily measured by the extent of the damage.

Risco Integral

Integral risk (risco integral) is the most severe form of strict liability, where no defenses are available except proof that the damage did not result from the defendant’s activity. It applies primarily to environmental liability (Law 6.938/1981).

Culpa Concorrente

Contributory negligence (culpa concorrente) arises when both the victim and the tortfeasor contributed to the damage. The court reduces the compensation proportionally based on the degree of each party’s contribution. Brazilian law does not apply a purely comparative fault system but considers the victim’s conduct in assessing liability.

Teoria da Perda de uma Chance

Loss of a chance (perda de uma chance) is a doctrine allowing compensation for the loss of a probability of a favorable outcome. Recognized by the STJ, it applies particularly in medical malpractice cases where the patient lost the chance of successful treatment. The compensation corresponds to the probability of the lost chance.

Prescrição

Prescription for tort claims is three years (Article 206, §3, V, Civil Code). The prescriptive period runs from the date the injured party becomes aware of the damage and its cause. The prescriptive period may be suspended or interrupted in specific circumstances.