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Moral and material damage

This article was translated by an automatic translation system, and was therefore not reviewed by people.


The term "damage" comes from the Latin "damnu" and means harm or decrease in shareholders' moral or material from someone else. According Beviláqua Clovis, damage, in the broad sense, is any reduction in property's legal person.
Article 5 of the Federal Constitution in its governing inciso X "is the inviolable intimacy, private life, honor and image of the people, the right to compensation for moral or material damage resulting from its breach."
As remains patent, the nature of the damage can be moral, material, or the picture. The repair of the damage is expected in the Civil Code:
"He who, by voluntary action or omission, negligence or recklessness, violate law and harm others, even if only moral, commits an unlawful act." and "He who by an unlawful act (arts. 186 and 187), causing damage to others, is obliged to repair it." (Art. 186 and 927).
The compensation for moral damage and immaterial compensation aims at teaching the aggressor and penalty. In applying the penalty, there will be a discouragement to restart it in such a practice.
Thus, the compensation is provided in social relations, serving to repair the damage, while simultaneously discouraging the cause of the injury, as the Code Consumerista regarding the relations of consumption, the provision in Article 20:
"The service provider liable for quality defects that render them unfit for consumption or decrease the value, as well as those arising from the disparity with the terms of the offer or advertisement, the consumer may require, alternatively, at its choice" .
In case of breach of that duty, order the same law:
"In case of failure, all or part of the obligations referred to in this article shall be those persons compelled to obey them and repair the damage, as provided in this code." (Art. 22, sole paragraph).
The damage incurred can generate different kinds of consequences, considering the possibility of the damage or bring harm to the image that also generate moral damage or injuries also generate moral order or the material image.
Social relations between individuals or between individuals and companies are generating potential damage to the relations of consumption, errors in the provision of services, breach of environmental standards, damage to health or to aesthetic, damages suffered by the employee in the course of their profession, the damage caused by the State, among others.
In the employment relationship are some demands of material and moral order resulting from occupational disease, based on subjective responsibility through demonstration of fault of employer.
An employee seeking the court to grant his request for moral, arguing that the damage to their health caused different consequences in their daily lives and therefore, a reflection, there was damage to the moral context, then requiring repair by the employer.
For the employer, there is guilt by negligence on the health of the employee because the worker is for the contractor ensure the legal duty to provide him adequate conditions of work.
Noted that the doctrine calls subjectivism considers necessary and essential to the coexistence of three conditions in the etiology of liability, namely the offense or to an existing standard error of conduct, the damage - which may be accident or disease - and the causation of event with the labor.
Once the lesion is recognized and the right to indemnification to the victim, it will quantify the value in Pecunia.
Some criteria are established for the quantification. No mother in law a formula for this objective. It is the court set the "quantum" of the repair claim, using reasonableness and fairness.
These goals should guide the setting, such as: The stipulation of a value consistent with disapproved of the offending conduct, the intensity and duration of suffering experienced by the victim, the ability socio-economic and financial shares and other circumstances of each case concrete.
Consider also be the circumstances of the case, the degree of guilt of the alleged offender, the extent of damage, the economic capacity of the parties and the nature of compensatory damages.
The degree of fault of the employer in the event damaging the material assets of the company and extent of the damage points are essential to avoid the illicit enrichment of the claimant with exorbitant damages award or derisory amounts, insufficient to reimburse the injured.
Accordingly, following the ruling that decided the extension of the indemnification arbitrated by courts of first instance:
"The compensation must be fixed on the basis of legal and doctrinal, whose limits have been adopted by law dominant in order to avoid possible abuse and illicit enrichment. Setting the compensation for moral damages in $ 1,900.00, which is not sufficient to indemnify the author and restrain the defendant from similar attitudes. Compensation increased to $ 7,000.00. Appeal upheld the author. " (TJSP; APL 7263071-0; Ac. 3480077; Jardinópolis; Twenty Fourth Board of Private Law; Rel Des. Salles Vieira, I think. 04/12/2008; DJESP 10/03/2009)
According to the theory of discouragement, the offender shall be sentenced to pay compensation, representing an effective measure, not to restart in place of the tort. The proportionality and reasonableness of the amount established and suffered harm, ensure the provision court, without setting the enrichment of the offense.

This article was translated by an automatic translation system, and was therefore not reviewed by people.

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