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Introduction:
After reading the chapter from beginning to end, we see that it deals with illicit acts.
The matter was separated by doctrine, or act of tort law.
When subjected volitional act done, or specifically to achieve legal effect is perfect and feels true to traverse on lawful object, or as the law and not contrary to morality, public order, the moral, it is legal transaction . The second to the contrary, going against the law, conflicts with the law, to morality, with morality, therefore, generates other effects. This gives it the name of tort.
Although the tort, has ontologically single understanding, can receive civil and criminal punishment, for example, there are injuries. The criminal law punishes the act of injury to penalty. The interest of punishing in the criminal field, is social, collective. Little importance to the criminal law that there was no loss method because it is right punishment for excellence.
In civil law, should know what the consequences of unlawful conduct. In the crime of injury the victim may have suffered injury, such as hospital costs, lack of work and damage to the moral, if there are scars that impair their social traffic.
In the civil field, only interested in tort to the extent that there is damage to be indemnified
The tort in the criminal field, so it is called crime or offense. The terminology tort is reserved in order for the civilian field, there is talk of civil liability.
I-Concept of tort. Contract and tort liability
The tort is charged with one violation of a duty and the damage which results to others.
Article 186 - "He who by voluntary action or omission, negligence or recklessness, violate law and harm others, even if only moral, commits an unlawful act."
Device that decorate all the consequences relating to the liability between us. In the liability (also called aquiliana because of Roman origin) preexiste not a contract. For example, someone who causes traffic accident acting in fault and causing injury indenizável. Before the accident there was a contractual relationship. This fact differs from what occurs in the breach, or defective performance of a contract where the fault stems from the commitment.
The tort, therefore, may derive from both contract and tort of relationship. This precept governing contractual liability is found in Article 389 of the Civil Code of 2002.
The breach of a contractual obligation generates an illegal contract and his act causes reaction in ordering law, which imposes the obligation to repair due to the injury caused to others.
The illegality comin in art. 186 cc/02 concerns the violation of legal standard, the breach of a duty to conduct, by intent or negligence, which would prejudice of others.
The violation of the standard may suffer criminal reprimand, consisting of a fine or corporal punishment, the related civil claims or civil damages only if the standard has not violated criminal nature. For example, in the case of murder. There is violation of the provision of art. 121 of the Penal Code, subjecting the offender to imprisonment for. But as this fact cause harm to his family, the law subjects the agent to pay the expenses for the treatment of the victim, his funeral, the mourning family and the duty to provide child support to persons to whom the deceased had to. (CC, art. 948).
II - are essential to the configuration of the tort:
It is necessary to decompose the elements of art. 186.
To have the duty to indemnify arises, it is necessary, first, that any action or omission by the agent, that such conduct is linked to the causal relationship with the damage incurred by the victim and, finally, that he acted with intent or negligence . Missing any of these elements disappears the duty to indemnify.
A - act or omission of Agent.
The tort may occur not only an action but also of omission of the agent. In any case always arises from an attitude, whether active or passive, and will cause damage to third.
The line up is generally active in doloso or reckless act, while the passive conduct is usually printed by negligence. The line is silent only when the agent has a duty to act in a certain way and no longer do so. It enables the conduct of the person who prints a speeding car and causes an accident. Eg slope is, without triggering the brake lever, and slide the vehicle causing property damage in others.
B - List of Causality - Also there should be a relation of causality to have duty to indemnify. May have occurred tort, damage may have occurred but may not have been a causal link between that injury and the conduct of the agent. The damage may have been caused by others, or solely the fault of the victim. Thus, there is no duty to indemnify.
This assumption is important because most often the victim prove this relationship.
C - Existence of damage - Thirdly, to claim compensation, it is necessary to have damage. No damage, stop the private law the tort is irrelevant. For damage sheet no doubt as to indemnity, because it is easily assessable. The biggest problem comes when the damage is moral. We can ask: to what extent the pain may be indemnified?
Wilson da Silva Melo, gives the following definition:
"Dano moral injuries are the subject of physical or natural person right in their ideal property, it being understood by property ideal as opposed to material wealth, all of everything that is not susceptible to economic value."
For example, when a dealer claims it is morally dubious, it also inafastável the occurrence of economic damage.
The problem was overcome with the advent of the Federal Constitution of 1988, whose sections V and X of the 5th admitted the compensation of moral damage.
The new code expressly acknowledges to repair the moral damage: Article 186 "Whoever, by voluntary action or omission, negligence or recklessness, violate law and harm others, even if only moral, commits an unlawful act."
D - Dolo or fault of the agent - to bring out the liability requires that the agent of harm acted intentionally or guiltily.
Art. 186 of the new code mentions both intent and guilt, thus considered in the criminal law. Speak the device into "voluntary action or omission." The Criminal Code defines intent as the situation where the agent is either the result or the risk of producing it (art. 18, I). No specific intent, the agent either directly or indirectly the result. In any intent specified in penal device (when the agent took the risk of producing the outcome), the agent pursues the act unintentionally as a result, but when, by implication, consent to it, tolerating it, is acting with possible intent.
The fault, according to the same art. 186 is set by the term negligence or recklessness. The penal code in art. 18, adds to inexperience. In wrongful conduct, there is always voluntary unintended determinant of outcome. The agent does not foresee the outcome, but there is predictability of the event, ie the event, seen objectively, it is predictable. The agent therefore does not provide the result, if the practice and provide for the conduct, the situation is set to deceit. When the outcome is unpredictable, there is guilt and the act to enter the field of force majeure and fortuitous, and no compensation whatsoever.
When it comes to fault in the calendar, encompassing both concepts that distinguish the art. 186, or to blame the calendar includes both intent on strictly talking fault. Even for compensation, as fixed, fault of the agent, in the civil, rather it has been intent or fault, because the damages can be sought in both situations.
The idea of guilt involves the attribution of, and in this capacity. So, in principle, the weak and mentally impúberes minors can not be held responsible, not through the people that are under their care. You lack the maturity and clarity sufficient to be subjectively charges.
In current law, is irrelevant to question of the degree of guilt, which was important in the past.
Distinction is serious, the light and the levíssima. The serious fault was due to recklessness or negligence is concerned, it is ahead of intent. The fault light was on which the agent lacked the ordinary care in his conduct, on which levíssima the situation was that only a man of great diligence and care can prevent, not generating, in general the duty to indemnify. In traditional doctrine, this distinction is irrelevant because the system of 1916 the key is the injury and not the degree of fault, because even the fault levíssima create duty to indemnify. Anyway, the new code is not infenso this new perspective. Art. 944 stamp in your caput to both, your single paragraph states: "If there is excessive disproportion between the seriousness of the fault and the damage, the court may reduce, equitably, to indemnification."
For the doctrine is the focus on the distinction between guilt and blame in particular in abstract.
For the fault in particular, it examines the conduct of the agent in the case occurred. Fault in the abstract, the responsibility is to default the average man in society, diligens pater familias of the Romans, it is fiction.
Within our system of law, the criterion adopted is the fault in concrete.
Other forms of guilt can be cited. The fault in eligendo is the result of the choice of agent or agents such as the direction of a delivery vehicle to person not entitled.
The fault in wakefulness and that stems from the lack of supervision over another person, where such surveillance is necessary or follows the law is that which occurs in the case of the employer with respect to employees, the unlawful actions of the agents are emerging a duty to indemnify the preponente. It can also happen to own something. The person who directs vehicle without proper maintenance of safety equipment, for example.
The committees fault happens when the official practice act positive, the fault omittendo, when the attitude is negative act.
The fault is guarded in the absence of due care with respect to any person, animal or thing. This is the case the animal is not properly kept by the owner and tail damage.
All of these situations, more or less depth from the fault in our law.
The victim, as a general rule, within the liability of guilt, must prove the elements of the tort for compensation for damage.
There is tendency in the case that each day more is accumulating to extend the concept of fault to allow greater scope in the repair of damage.
In order to remedy the inconveniences arising from the narrowness of the theory of guilt, and in order to facilitate the victim to obtain proper redress some technical procedures were adopted by law and jurisprudence. Among them, it is distinguished: the reception of the concept of abuse of rights, the host of negative idea of guilt, the admission, in many cases, the presumption of guilt of the agent causing the damage, the environment, in others, the responsibility within the scope of the contract, the adoption, in some cases, the theory of risk.
Deal, only for clarification of the theory of strict liability, procedure to be more daring.
Set up the concept of presumed guilt, claiming that there is general duty not to harm. On that basis, it is another step, the theory of strict liability, to escape the guilt, the center of subjective responsibility. Pass up the idea that the causality is important and repair the damage, not think of attributability and guilt of causing the damage. It aims in the field of theory that puts the theory of risk, for which each should bear the risks of the activity is engaged and must compensate where damage. The new Code risky innovations in this area. In fact, the sole paragraph of art. 927, which establishes the general obligation to repair the damage behavior stems from an unlawful act.
The theory of risk is legislative support, the Brazilian legislation, in three cases: the law of occupational accidents in the Brazilian Aeronautics Code (Law No. 7565 of 19-12-1986) in reference to damage caused by objects dropped from aircraft and damage caused by operations on land and in Decree No. 2681/12, in relation to damage caused by the iron roads to marginal owners. In these cases, the problem of guilt is not proposed, the responsibility is objective, and the duty to indemnify arises from the existence of a causal relationship between the injury and actually generating it.
III - Reduction or Exclusion of Liability
Under certain circumstances, although at first sight is present the requirements for accountability, lacking any of the assumptions to be mentioned, does not set the responsibility, ie the case of blame the victim, blame the competition, unforeseeable circumstances or force majeure . It can therefore be rebutted if evidence is that there was no damage or fault of the agent, or direction of causality.
The liability can not exist without the relationship of causation between damage and unlawful conduct of the agent.
There is this connection that the event occurred, only the fault of the victim, if that excludes any liability for concurrent fault of the victim, in which case the compensation is due, in half or reduced proportionately, due to the fault of the victim and bilateral the agent, and by force majeure or unforeseeable circumstances (CC, art. 393), stopping, then the responsibility, because these facts eliminate the guilt, before the inevitable.
IV - Acts which are not unlawful harmful.
There are exceptional cases that are not even illegal acts to cause injury to the rights of others. There is damage, the relationship of causality between the action of the agent and the injury outside the law. But the procedure of the harmful agent, for legitimate reason established by law, does not have a duty to indemnify, because the legal standard it illegal to cut the qualification. Indeed, the Civil Code, art. 188, I and II, are not unlawful acts: a legitimate defense, regular exercise of the right and the state of necessity. (CP Art. 23)
The legitimate defense says the law is not the unlawful act committed in self defense.
The civil law does not define because it is a legitimate defense in criminal law that find their concept. It reads as art. 25 of the CP:
"It is understood in self defense who's using moderate means, repels unjust aggression, actual or imminent, the right to his reward."
The general rule is that rights should be given to the decision of the Judiciary. Exceptionally, however, the law allows the courts to hand.
In accordance with the Criminal Law, occurring for the assumptions of self defense, is necessary:
a) that the threat or aggression to the right is present or imminent;
b) it is unjust;
c) the means used in repulsion are moderate, ie not going beyond what is necessary for the defense;
d) that the defense is in law the agent or others.
If the attack or threat is remote, the threat must rely on the process of law, whether it is fair, the reaction is not justified, and finally, if the reaction goes beyond what is necessary to repel the aggression, there is a fault over which the right not legitimate.
Besides the general rule of art. 188, the Civil Code establishes in the other device, the issue of self-defense.
As mentioned in art. 1210, § 1, the opportunity of ownership, requires that when the possessor turbo, or robber, you can keep it or return it by its own force, provided that it will soon.
Regular exercise or a normal right recognized (CC. par 188, I, part 2) that harm others rights excludes any liability for the injury, not by a procedure referred to the law. About the
Today, the Code of 2002 provides specific rule about it. It provides the art. 187 of current law:
"It also commits an unlawful act the holder of a right that, in practice it clearly exceeds the limits imposed by their economic or social order, good faith or in morals. To use a power, right harm someone brings legal effect as a duty to indemnify.
No word abuse when we find the notion of excess, the use of a state against persons or things in general law, abuse of rights can be understood with the fact of using the power of a college, or even a right of one thing, beyond what the law fairly and to society.
This idea, I think, is adopted by the Brazilian legislature, the advocates of art. 5 of the Law of Introduction to the Civil Code that "In law enforcement, the judge will take the social purposes to which it is addressed and the requirements of the common good."
Acts committed in a state of need - the offense consists of the right outside (deterioration or destruction of something belonging to others or damage to a person) to remove imminent danger, when circumstances make it absolutely necessary and when not to exceed the limits necessary to removing the danger (CC 188, II, and paragraph structure; CP Art. 24, paragraphs 1 and 2).
Thus, acting in a state of need others who destroys property to save life outside, in case of accident, fire, from drowning.
Under the sole paragraph of art. 930 of the new code, both in-state and in need of self-defense when the offender is not harmed, but others, the duty to indemnify remains. This law only disappears if the hit is the actual offender or the offender's state of distress. Is not characterized as a state of need that the driver, concerned with a principle of fire in his car, losing direction and overrunning contramão, resulting in another collision. Furthermore, chances are a state of necessity: The sacrifice of a car outside to save human lives, avoiding being run down, kill a dog of another, and attacked the madness that threatens to bite several people.
PRESCRIPTION and decay
I. INTRODUCTION:
Decay found in prescription and the influence of the element within the right time.
The exercise of a right can not be Indefinite pending. Must be exercised by the holder within a specified period. Failing this, the holder loses the right to enforce its rights. If the ability to exercise rights were undefined in time, there would be social instability. Was not the time for exercising the rights, every person would have to save all documents of the business done in your life, and of previous generations.
With the extinction of rights by prescription and decay, there are time limits, which, when sold, free from dangers of possible invalidity.
The institutes of prescription and decay are legal constructions. Time is indeed legal, natural event. The prescription and decay events are legal in the strict sense, because they are created by the town. It is therefore the legislature to fix the time for revocation of rights, which may be more or less long, depending on legislative policy.
II. PRESCRIPTION:
Definition, requirements, general provisions.
1. Definition and requirements
Prescription to purchase (which will be studied in the Law of Things) is the acceptance that the person enjoys a right for long period of time, the prerogative to do so to their property, ie usucapião.
Prescription extinct will determine that the person who left for a long period of exercising an action that protected the right subjective lose the right to do it.
According Beviláqua limitation is the loss of the action assigned to a right and all his defensive ability, as a result of non-use of them, during a specified period of time.
What has thus extinguished by prescription, is not the law. What is extinguished is the action that defends. When not using a long time the appeal for the protection of a right infringed, the holder complies with the situation is in fact due, and the legal system, eager to establish conditions of security and harmony in social life, this situation allows consolidate. But in reality, devoid of action the law loses its effectiveness.
According Leal prescribing requirements are:
The existence of action exercitável;
The inertia of the holder of the action by its non-performance;
The continuity of inertia for some time;
Absence of fact or act barring, suspending or staccato way of prescription.
Silvio Rodrigues second there are two basic requirements for the prescription. The inaction of the right holder and the passing of time. Justification has the idea that if the right holder fails to pursue the action, showing his disinterest, does not deserve legal protection. Still requires the passing of a time fixed by law. The legislation provides a long term relationship of variables. The cases that are not listed should follow the rule contained in Article 205 of the Civil Code of 2002.
Very important is the beginning of the prescriptive period. In many cases the law is explicit about it. But generally, the period of limitation begins when the action could have been proposed.
General provisions on the prescription:
Disclaimer
Renunciation of prescription is the act whereby the prescribente up to do it.
The waiver may be express or implied, but requires two assumptions: 1) that does not harm the third, 2) that have already been consummated.
With regard to express waiver, mister is saying that unilateral action is that it is through a real statement, not necessarily written, and can be expressed verbally (to be proven by any means permitted).
A waiver occurs when tacit knowledge that the debtor has consummated the act prescribing practices that amount in recognition of the right prescribed. The most typical examples are the payment of debt, provision of security to ensure payment or the requested date for the payment.
The waiver may not prejudice third. If the prescribente, waiving the requirement undermines the right of the third act has no validity. Therefore, the waiver amounts to a freedom, but not right to sacrifice others.
The law provides that a waiver of prescription is valid only after consummation, that is, the parties can not agree. Therefore, the law forbids the renunciation while still in progress or not started when the prescription. Allows it, however, after having been consummated, because the benefits from it has incorporated the assets of the debtor, and can not prevent someone is able to make a freedom.
And now need to be alleged
As the prescription is a benefit granted to a person, the judge can only order it is explicitly invoked. The judge can not declare extinct the action because the law must respect the disturbance of consciousness that could not pay the debt at some time, but wishes to do so.
The law gives the person the prescription claim in any forum.
The prescription and administration of the persons deprived of their property
The law protects the absolutely useless. Determines that they are not against the corresponding period prescricional, so that either the course of the prescription is initiated, or is suspended, if there is already started.
As compared to those unable or who are not managing their assets, the law allows the prescription to them and seeking to preserve the heritage, gives regressive action against its officers.
2. Suspension or interruption of prescription
Prescription is consummated when the full course of the period specified by law for its effectiveness.
There are circumstances where the law prevents the limitation period begins to flow, or fluency in its orders that suspend. Examples of suspension: the law establishes in Art. 197, III of CC/2002 that the prescription does not run between tutor and pupil, the law establishes in Art. 198, II of CC/2002 that prescription does not run away from the public service in Brazil to the Union, States or Cities.
The interruption is an active behavior of the creditor showing not inert, but interested in maintaining their right. The interruption may only occur once.
While prescription is suspended by law in certain cases, and to resume its course, the time elapsed before the debtor takes the interruption of prescription is the act by which the creditor's decision, making use as appropriate, makes void the deadline already passed.
3. Cases where the course of limitation does not start or stop
The law deals with the causes that prevent or suspend the prescription together, because there is no need to distinguish things of that nature. When the limitation period has not yet begun to flow and is one of the causes that prevent the law states, it does not start, if that period had already passed when it came, the course is suspended.
The Civil Code lists three articles in the cases of suspension of prescription.
Art. 197 is aimed at people involved in legal relationship, which hinder or prevent the defense of the right of either, therefore, the law provides that during the term of the bond shall not run. See examples:
a) It is the case of spouses, the constancy of marriage. Put an action against each other and cause a marital disharmony. Furthermore, the spouse not wanting to judge the action against his consort could lose its right by prescription. Therefore, the law stipulates that during the marriage do not run the prescription.
b) The law prevents the course of time during the home prescricional power.
c) The Act suspends the course of limitation of actions between pupil and tutor or curator and curatelado.
Art. 198 of CC/2002 ordering prescription not run against people because of an event, could not defend their interests. It is the first item to be absolutely unable to hold a right, but not to defend the lawsuit, it does not prescribe, as the term begins to flow only after they exceed the absolute failure. Also the prescription does not run against those, the service of the homeland, are outside the country and can not care for their own interests.
4. The interruption of prescription
The interruption of prescription, in general, involves a deliberate attitude of the creditor. This attitude is only necessary if the debtor acknowledges the right of the creditor, which makes prescription stop.
Forms of interruption of prescription.
a) The prescription is interrupted by service staff made to the debtor, even if ordered by court jurisdiction (CC, art. 202, I).
In fact the order that the orders that have the power to stop the prescription, but their effectiveness is depending on the service make up the legal timeframe.
b) The prescription is interrupted by protest (CC, art. 202, II).
c) the lapse prescricional interrupted the presentation of the security of inventory in court or in competition with creditors (CC, art. 202, IV).
It is the display of document on the debtor's inventory, is an act which aims to receive the amount due.
d) The course of the prescription is also interrupted by any legal act that the debtor is in arrears (CC, art. 202, V).
e) also interrupts the prescription any act clear, even out of recognition that the import duty by the debtor.
5. The prescription and the Public
The Public Power has created for itself a regime of exception (Decree no. 20910 of 6 January 1932), making a wider impact on business in the prescription that was liable.
The law limits the maximum period of five years the prescricional the debt liabilities of the
Examples: a) any law relating to pensions and benefits due or due to the way pay and Montepio civil or military, b) any differences between wages earned and wages paid c) any restrictions.
The limitation reaches progressively benefits not claimed, as the limitations to achieve. For example, if an employee, after six years of the birth of a child, requires that the family allowance is entitled, receive only the laggards of the past five years, since the benefits accrued in the first year has expired.
Decree no. 20.910 / 32 limited the creditor to stop the prescription once, and if it resumes its interrupted course in half the time.
Decree-Law no. 4597 of 19 August 1942 brought more innovation in regard to the requirement for persons under public law which are:
a) covered the Decree no. 20910/32 to municipalities and parastatal bodies;
b) imposed a requirement that is consumed in the course of the demand;
The law set a year from the act of which is the standard result, the time to bring the administrative complaint.
6. Limitation period
No art. 205, is the general rule that the limitation occurs in ten years when the law does not set a time less.
No art. 206, the legislator said various actions and sets them a different period of limitation.
There are some actions that are imprescriptible as the rights of the person (life, honor, name, freedom), the actions of state of the family (legal separation, paternity research).
II. Decay
Definition, distinction between decadence and prescription
1. Definition
According to Salvo Venosa Sílvio decline is the falling share of state or what has fallen. In the legal field, indicates a fall or perish by the law during the period for exercise, without the holder had exercised.
2. Difference between prescription and decay
Câmara Leal second difference between the first prescription is that the decay and decadence directly extinguished the right, and with it the action that protects, while prescribing the action ceases, and with it the right to protect. Then, says the author, that the second difference is at the beginning of the decay and at the beginning of the prescription: the decay starts to run, run as extinct since the time the law comes as a prescription is not their beginning with the birth of the law, but from its violation, because it is born at that time that the action against which the prescription back. The third distinction is the fact that decay involves a law that, although born, "has not become effective by the lack of exercise, while the prescription assumes a right born and effective, but it died for lack of protection by the action, against the violation suffered. " (Leal, 1978:101).
For the distinction, although not definitive can take into account the origin of action: if the origin is of the same law that was born with it, set to decline, if different, if the action was later, when the law was exists and is being violated, this act marks the prescription.
Silvio Rodrigues according to the distinction based on the idea that the prescription what is the action that seems the right shade, while the decay is the law itself that fenece. For him, when we examine a hypothesis to be persuaded and not the suspension or interruption of the course of time, in conflict with the interests of society to maintain this open threat of action, time is of decadence. In other cases it is prescribed.
CONCLUSION:
After studying and analyzing the positions in respect of unlawful acts, Prescription and decay observed that these are generated in the responsibilities of civil law, creating obligations and repair of damage.
Prescription already in decline and there is an essential element that is the time, because this time with, which is lost, it also loses the right to enforce its rights if it were, there would be social instability.
In the prescription that is not extinguished the right, is the action that defends. In decay and that the law itself ceases.
This article was translated by an automatic translation system, and was therefore not reviewed by people.