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Chapter 19 - Regulating Risk in Brazil: Resort to General Clauses
- from Part II - State of the national art on risk
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- By Bernardo Bissoto Queiroz de Moraes, University of Sao Paulo, Ignacio Maria Poveda Velasco, University of Sao Paulo, Otavio Luiz Rodrigues Junior, University of Sao Paulo, Eduardo Tomasevicius Filho, University of Sao Paulo
- Edited by Matthew Dyson
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- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 437-454
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- Chapter
- Export citation
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Summary
WHY GENERAL CLAUSES?
This chapter picks up one of the key characteristics of the Brazilian approach to regulating risk: the use of open-textured general clauses to empower judges to deal with cases equitably. These clauses have been key to developing the Brazilian response to risk in private relationships, in particular in the form of, first, the risk-based strict liability general clause, provided for in the sole paragraph of article 927 of the 2002 Civil Code (2002 CC), which is the apex of this system, and, second, the strict liability general clauses in the 1990 Code of Consumer Protection (1990 CDC).
In order to understand why general clauses are the main legal form of risk regulation in Brazilian laws, a short history of the Brazilian Civil Code is required. On 10 January 2002, the old 1916 Civil Code (1916 CC) was replaced by a new Code. Although the new Code appears to be very modern, one of the first twenty-first-century civil codes, the development of a new Code in Brazil had actually taken a long time. Since the 1940s, successive Brazilian governments have wanted to replace the 1916 CC and, in the early 1960s, two leading Brazilian jurists, Caio Mario da Silva Pereira and Orlando Gomes, were appointed to draft a Civil Code and a Code of Obligations. However, the advent of a military dictatorship in April 1964 ended their work on the draft: even if Orlando Gomes’ socialist views were in no way reflected in the draft legislation, the draft was nonetheless tainted. After a short gap, in 1970, the government appointed another committee of scholars, supervised by Professor Miguel Reale, to draft a new Civil Code.
Professor Reale enshrined three values in the 2002 CC. The first was ‘sociality’ (socialidade), a word which in Portuguese expresses the need for individuals to exercise their rights without causing harm to one another. The social function of contract and property are examples of this value in this Code. The second value was ‘ethicality’ (eticidade), through the principle of good faith, notably inspired by § 242 German Civil Code (BGB). Finally, the third value was ‘flexibility’ (operabilidade), through which he desired to establish a system that was open and permeable to new values, 4 and sensitive to the socio-economic transformations in Brazil, so that courts could promote the development of law faster than parliament.
Chapter 10 - Risk and Brazilian Private Law
- from Part I - Risk Overviews
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- By Bernardo Bissoto Queiroz de Moraes, University of Sao Paulo, Ignacio Maria Poveda Velasco, University of Sao Paulo, Otavio Luiz Rodrigues Junior, University of Sao Paulo, Eduardo Tomasevicius Filho, University of Sao Paulo
- Edited by Matthew Dyson
-
- Book:
- Regulating Risk through Private Law
- Published by:
- Intersentia
- Published online:
- 13 October 2018
- Print publication:
- 31 January 2018, pp 253-282
-
- Chapter
- Export citation
-
Summary
INTRODUCTION
The concept of risk is embedded in Brazilian law. The term ‘risk’ has acquired multiple meanings and has found its way into several fields of law, with varying degrees of acceptance. Scholars and professionals normally mention risk when trying to reduce it. This is the case, for instance, in contract law. Risk is also a main subject in tort law and plays a key role in the summa divisio of tort liability: fault-based liability and strict liability. Fault is the foundation for ‘subjective’ liability (along with abuse of rights); 1 risk is usually the foundation for strict liability. Each form of liability is autonomous with regard to the other and in no sense is ‘subjective ’ liability hierarchically superior to, or thought to be more important than, strict liability in Brazil. Rather, each of these types has its own scope of regulation, clearly defined by law, meaning that parties may not choose when fault-based liability or strict liability is applied. Thus, the two regimes complement one another through the application of general clauses. Unlike some other countries, the use of general clauses is a hallmark of Brazilian law on risk and complicates regulating risk in a given activity, as discussed in the Brazilian chapter in Part II (Ch. 19).
However, the concept of risk is not confined to generic hypotheses enshrined in contract law or tort law. Every country has particular problems related to risk that require specific legal solutions formulated within the general framework of that jurisdiction, and has its own starting points, usually not explicit in legislation, case law or legal doctrines. Analysing risk in Brazilian law reveals interesting features of the country's legal culture, for example the way in which Brazilian scholarship has developed doctrines regarding risk distribution, or how legislative techniques were adopted to provide timely answers to riskrelated problems, particularly those that were and are more sensitive due to the socio-economic conditions in twentieth- and twenty-first-century Brazil.
In this chapter, the analysis of the concept of risk is divided into three parts in sections 10.2 – 10.4. The first part is a survey of risk definitions in key Brazilian legislation and classification of risk by scholars.