“Compensatio lucri cum damno”: essential outlines and the need to review it in cases concerning social security benefits for inability

Abstract

Damages assessment is a major issue in torts. This paper aims to explore the application of compensatio lucri cum damno in the assessment of damages. For this reason, the objective is to map out its essential elements, both in Brazilian legal system and in comparative law, and set some premises to its application in future cases. In the first chapter, it will be considered/presented the institute main features, as weel as the different criteria for its correct appliance in various/several legal systems. At this point, the proper distinction between this institute and the compensation (article 368 of the Civil Code) is made, besides observing its similarity with unjust enrichment, so that the victim is not left in a more advantageous situation than the one she would have been in if she had not been wronged/injured. It is also shown the insufficiency of the isolated use of “difference theory”, which could lead to injustices, since a necessary valuation analysis is absent. The most controversial requirement in the application of the institute is causation. The damage and the benefit must have the same cause, which generates great doctrinal discussion in several jurisdictions. In the second chapter, the Brazilian law becomes the central object of observation. It will be analyzed the situations where compensatio lucri cum damno is applied more consistently, as in the case the sale of car debris on traffic accidents insurance cases, or even in relation to compulsory insurance (DPVAT) compensation in the evaluation of damages. Finally, the application of the compensatio lucri cum damno is approached in the context of some social security benefits to which the legislation allows the regressive action of the National Institute of Social Security (NISS) against the wrongdoing. Given that the agent can be sued directly by the injured party and also by the social security agency, it is understood that recent changes in our country demand a more mature correlation between the compensatio lucri cum damno and the indemnity of covered damages, even though partially, by social security benefits.