Strict liability (on Brazilian Law)

Abstract

Under the Brazilian Civil Code, torts are divided into negligence and intentional torts (on Brazilian law, both defined as subjective liability) and strict liability torts (defined as objective liability). Strict liability torts concentrates on damages instead of fault, based on a risk theory rationale, considering that technical, scientific and technological innovations have exposed human activities to danger, whereas it is not fair that the lawful practice of such activities may harm rights of other individuals. Strict liability, in this sense, is established under an open-ended provision on the Brazilian Civil Code, and is drawing a tendency to expand its applicability to additional situations, due to the innovations caused by modern times, which consequently increases risks and situations of non-parity of power and vulnerability of victims, allowing the application of strict liability rules to additional situations not contemplated prima facie on the Code. The sole paragraph of article 927 of the Brazilian Civil Code is not a subsidiary nor a comprehensive provision, but rather an open-ended model, allowing two methods to assign strict liability rules for a situation: situations where the risk is previously characterized as such by law, or situations where the risk, even if not characterized by law, is essential to the practice of an activity.