On punitive damages: analysis of their applicability in the Brazilian legal system

Abstract

The applicability of punitive damages in Brazilian Private Law has been the subject of theoretical controversies. Based on arguments such as the need for greater protection of the personality rights and the insufficient redress in cases of infringement of those rights, it currently prevails that punitive damages may be applied in moral damages events. This paper holds that the attempt to include punitive damages in Brazilian Private Law is unfeasible in the absence of an express legal provision, as it represents a breach to the principle of legality. It is also noted that the historical development of tort law in the Roman-German juridical tradition promoted a gradual overcoming of private penalties, favoring the reparative nature of damages. Until they are established by law, punitive damages are not applicable in the Brazilian legal system.