Possibilidade da incidência da cláusula de redução da indenização por culpa concorrente da vítima na responsabilidade civil objetiva

Abstract

The simple fact of living in society creates some kind of self-accountability, in which each individual takes his share of damage sustained in everyday life. Therefore, anyone who is subjected to communication needs to take precautions so that the damage does not occur or, at the very least, that his part in the damage is mitigated, because if the victim is always fully compensated, there will not be any incentive to safeguard. The principle adopted in Brazilian law as a source of compensation for damage is for complete compensation. However, that principle carries some exceptions, such as the victim’s concurrent fault, in which the compensation will be reduced proportionally to the victim’s fault at the event. At a first glance, there seem to be no problem in the implementation of the institute, because when the victim claims the existence of damage, the compensation will be reduced. However, controversy arises when the application of concurrent fault occurs in objective civil liability. Some say that the concurrent fault is incompatible with the objective civil liability, since it is not plausible to go back to the discussion of incidence of fault on the liability that is independent of fault for its configuration. However, others say that it is indeed possible to apply Article 945 of the 2002 Civil Code on objective civil liability, since the reduction of compensation for the victim's concurrent fault does not unduly introduce the element of guilt in this institute, given that the Article 945 does not act on the structure of obligation, but simply in its content, ie, in defining the quantum of indemnity. The guilt is to the objective civil liability a criterion of reasonableness and fairness, ie, a moral reference: one that brings benefits will only be penalized to the extent of what he actually did wrong.