- Ano V - Nº 46 - Mai 2001

The Common Law of Torts and the Brazilian Law on Civil Liability.

A Comparative Study.

I. Introduction.

The word torts comes from the French "tort" which means wrong (1); the French term in turn traces it’s origin to the Latin "tortus" which signifies something that is twisted or crooked. (2) Later development led to word’s synonymous essence in English language as a "wrong" (3).

This paper does not intend to duel on a detailed historical treatment of the concept of torts in common law; rather, the objective of this study, albeit short, is to discuss the liability in common law, and compare it with the corresponding concept in the Brazilian legal system and, to a certain extent, that of Arts. 1382 and 1383 of the French (Belgian) civil code.

II. The concept of torts in common Law.

A. A brief Prelude.

Before a discussion of the tort concept in common Law is had, it may perhaps be relevant to print out (but not to settle) an interesting issue relating to the position of tort in the common Law system. This issue brings two opposing schools of thoughts on a continuing debate; on side, which includes Sir John Salmond contends that there is no such animal as a Law of tort, "but merely a large group of unconnected wrongs, each with its own name, and that a plaintiff seeking recovery must find a pigeon-hole in which to fit defendants conduct and the harm he has suffered before the courts will afford a remedy". (4)

Dias & Merkisinis give as a reason for this position the fact that there is "no common set characteristics which every tort has to posses"; the elements of tort varying with the duty situation. (5) Fleming however raises objections to this school of thought, especially Sir John’s contention that the victim of a tortuous act must be able to identify an already existing tort Law which applies squarely to the said act before damages can be awarded to the victim.

One of these objections is the inability of a plaintiff to identify the legal category of the tortuous act complaisal of does not necessarily frustrate the plaintiff’s cause as damage could still be awarded if the legal requirements are complied with (as shown by the ever expending concept of tort Law). (6)

Opposing the first school of thought is the contradictory move to compress the entire body of torts Law to a "single unifying principle – that the infliction of all harm is tortuous unless it can be justified". (7) Fleming’s criticism of this position is that it does not consider the different conditions required for the action ability of one kind of tort from another. For instance, according to Fleming, in a tort case for malicious prosecution, the plaintiff has to prove absence of justification by defendant, wile in a label case, the burden of exoneration lies on the shoulder of the defendant. (8)

B. The Basic of Tort Liability in Common Law.

A tort is usually defined as "a civil wrong which entitles a person who is injured by its commission to claim damages for his loss, whether purely by way of reparation or a way of bringing home to the defendant the anti-social nature of his act". (9)

As a general rule, fault on the part of the defendant (either by acting intentionally or carelessly) is the basis of tort liability. (10) An important exception to this general rule is the concept of strict liability.

The concept of in the common Law of torts however assumes varying degrees: it could either be negligence, intention or recklessness, or malice. This paper does not discuss the different torts attended by the varying forms of tort, which are discussed in James book; suffice it to state however that under the common Law system, the term "fault" has a relatively broad meaning or significance, in the sense that it covers the two extremes of negligence and malice; in other legal systems the element of malice precludes the designation of an act as a tort; rather, an act attended by malice falls under the category of delicts or crimes.

Nevertheless, apart from the exceptions mentioned, a majority of the different torts require at least three minimum requirements:

1. Conduct of the defendant (which could either be an act or omission);
2. Fault (which could assume the form of negligence, intention or recklessness, or malice; and
3. Damage caused to the plaintiff arising from such conduct.

As aforementioned, strict liability does not require the element of fault. For instance under the tort of product liability, liability arises immediately where any damage is caused wholly by a defect in a product. (11) A precursor to this jurisprudence is case of Donoghue v. Stevenson (1932) AC 562, where a manufacturer of ginger beer was held liable under the neighbor or proximity principle, to any consumer who buys said product for any defect in the later. A basic difference however between this case and the Consumer Protection Act is that in the former, the basis of liability is negligence (fault), while in the letter, the plaintiff is not required to establish such negligence.

One significant aspect of Donoghue case is proximity test which Lord Atkin has formulated: apart form a reasonably foreseably criterian, namely that, in order for the defendant to be liable, the circumstances must be such that there is a close and direct relationship between the parties. (12)

Another example of the strict liability (which is not product liability) exception is the court’s ruling in the Rylands v. Fletcher case (1868), LR3HL330, which imposes tortuous liability independent of any "fault" or negligence on the part of the wrongdoer.

III . Arts. 1382 and 1383 of The French (Belgian) Civil Code.

Arts. 1382 and 1383 provide that:

Art. 1383 : Everyone is liable for the damage he causes not only by his acts, but by his negligence or imprudence.

From these two articles, it can be concluded that the French (Belgian) Law, the equivalent concept of tort liability is based on fault and negligence. However, developments have so evolued that Art. 1383 has been rendered superfluence in the sense that the term "fault" in Art. 1383 now covers both intentional and negligent torts. It must be rendered that Art. 1383 was previously added to make clear that negligent or careless acts resulting to another person’s damage or injury was likewise actionable (as in the case of intentional torts). Owing to the aforementioned development, Art. 1383 is virtually an inutile provision of Law.

Under article 1382, three essential elements for the existence of tort are:

1. damage;
2. causation; and
3. fault (which could either be intentional or negligent).

Notice must be made of the fact that the term fault under the French (Belgian) legal system does not cover so broad a ground as that of the common Law system; hence acts characterized by malice are not tortuous, but criminal (as in the case of defamation). Too, trespass or nuisance, which is a kind of tort in common Law, falls under the Law on property in the continental legal system.

IV. The Brazilian Legal System.

Article 159 of Brazilian Civil Code provides that:

"He who, by a voluntary act or omission, by negligence or carelessness, violates another’s right or causes him harm is bound to compensate for the damage".

According to a famous Brazilian jurist "Clovis Bevilaqua", in his comments to the Civil Code states that the "Reviewer Commission" and the Senate modified the redaction of his "Project" with regard to above mentioned article. They Introduced in his work. Therefore, after being amended by the Senate, and the way it is now, the "illicit act is a violation of one’s right or harm caused by malice (dolo) or guilt. ." In fact, the article in the referred jurist’s project had a different redaction: "Everyone who by voluntary action or omission, by negligence or carelessness, offend another’s right is bound to compensate for the damage caused".

The conclusion to be drawn is that Art. 159 not only took distance from the "Project’s" redaction but also it does not adjust itself to its sources of inspiration: Articles 1382 and 1383 of French (Belgian) Civil Code; Art. 823 of the German Code and Art. 41 of the Suisse Code of obligations.

With regard to Art. 159, the obligation to compensate requires three important factors: the illicit act, damage and "nexo Causal" , the relation cause and the effect between the act and the damage. This makes one concludes that according to this article the violation of a right is enough to impose the obligation to compensate.

The damage is an essential element to the imposition of the obligation to compensate. "Pas d’interet, pas action". Of course, that it happens sometimes, even rarely, that the obligation to compensate takes the character of a private writ, a sanction for an illicit (anti-social) behavior of the agent, "tout court", exceptions that could justify the original redaction of Art. 159. For instance, libel offences authorizes for a pecuniary compensation, even if there was no material damage. For example, the creditor does not need to prove the damage to ask and obtain a payment of a penal clause (Art. 927 of the Brazilian Civil Code).

Essential Elements of the Civil Liability

"Culpa", guilt as a basis for civil liability.

The civil liability in the Brazilian Law is based on the notion of proved or presumed guilt, except for cases provided by Law. (13) Guilt is one of the presuppositions of the civil liability. In this sense, Art. 159 provides that the actor’s action or omission be voluntary or at least that there exists negligence or carelessness. The obligation to compensate does not exist virtually, only because of actor’s behavior was objectively bad (anti-social). It’s essential the existence of guilt: by voluntary action or omission, by negligence or carelessness.

"NEXO CAUSAL"

Another element of civil liability is the causal connection between the illicit act and the damage caused. Without this causal connection the obligation to compensate is not admissible. Art. 159 expressely requires this connection, when attributes the obligations to compensate for the damage to whom by voluntary action or omission, negligence or carelessness cause damage to somebody else. The damage can only produce liability when it is possible to establish a causal connection between it and his actor.

DAMAGE

Art. 159 establishes in distinct propositions that a violation of a right or damage caused by guilt (action or omission) or malice obliges the responsible to compensate for the damage. Therefore, this also implies that, he who violates the so called rights of the so called moral damage is expressly authorized in Art. 159.

Finally, one can conclude that Art. 159 of the Brazilian Civil Code is not only the legal basis for the material damages but also for the "moral damages" and its corresponding article in French Law (according to its doctrine and jurisprudence) is Article 1382, whish virtually, in this aspect does almost not differ from article 159 of the Brazilian Civil Code. (14)

CONCLUSION

In the three systems discussed differences exist in the basis of tort liability although under them all "faute" is the basis liability.

However, it is worthwhile mention that the concept of "faute"is much broader under the Common Law as it covers negligence, recklessness and malice what does not occur under the French (Belgian) concept.

Even though the Brazilian concept also covers malice, like the Common Law concept, it is nevertheless, much closer to the French one, taking into account that the later was the basic source of inspiration of the Brazilian Civil Law system.

REFERENCES

1. P. S. James, Introduction to English Common Law, 1989
2. J. S. Fleming, The Law of Torts, 1987
3. J. S. Fleming, op. cit. supra
4. Id.
5. Dias & Markesinis, The English Law of Torts, 1976
6. J. S. Fleming, op. cit. supra
7. Id.
8. Id.
9. P. S. James: op. cit. supra
10. Id.
11. See Consumer Protection Act 1987 – discussed in James’book: op. cit. supra
12. See Hill v. Chief Constable of west Yorkshire (1988) 2 ALL ER 2 38 where it was held that the proximity test was not complied with.
13. P. M. Mario, Temas de Responsabilidade Civil, 1989.
14. Bevilaqua, Clovis, Codigo Civil dos Estados Unidos do Brasil, 1974.

RICARDO DOS SANTOS BEZERRA

PROFESOR VISITANTE DA UEPB

DA DISCIPLINA DIREITO INTERNACIONAL PÚBLICO

MESTRE EM DIREITO INTERNACIONAL PELA VRIJE UNIVERSITEIT BRUSSEL – BRUXELAS – BELGICA.

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