Análise sobre a aplicação da responsabilidade civil por atos lícitos no Direito Brasileiro.

Abstract

Civil liability is one of the most important aspects of Civil Law, being the way the State regulates conflictive relations in society when it is not the case of entering the criminal arena, seeking the means to compensate the damage sufferer, reestablishing, as far as possible, the previous state of things, the patrimonial balance. Liability is divided into subjective, which depends on guilt, being the rule in Brazilian civil law; and objective, which is independent of guilt and is exercised only in express cases. This paper discusses the application and possibility of a specific form of objective liability, namely, liability for lawful acts. The first chapter deals with the historical evolution of the matter, addressing its development in ancient Rome, France, Portugal and Brazil, highlighting the trend of expansion of the objective theory. The second chapter discusses the main concepts of civil liability, emphasizing the polysemy that pertains to the theme, and the four assumptions that, as a rule, constitute liability: human conduct, guilt, damage and causal connection, with the note that guilt is not present in strict liability, with special attention given to damage, since it is a conditio sine qua non so that one can speak of liability and consequent right to compensation. The third chapter deals properly with civil liability for lawfulness, presenting the considerations of notable scholars on its possibility and how it is present in the exercise of excludable unlawfulness and in provisions of the neighboring law. It was concluded by the full existence of liability without tort, an advance of the objective theory and a form of equitable justice that serves to resolve conflicts between rights. The hypothetical-deductive method was used, starting from the general precepts of civil liability to reach considerations about a specific type of it, using bibliographic and documental research, exploring scientific articles, doctrine, laws and jurisprudence.