Responsabilidade civil por dano indireto: do problema da causalidade aos parâmetros de reparação à luz da boa-fé objetiva

Abstract

This work aimed to address the challenging issue of civil liability for indirect damage. Specifically, it sought to determine whether, under Brazilian law, indirect damage is compensable, on what grounds, and to what extent. To accomplish this, it was necessary to first engage in conceptual discussions (regarding what exactly constitutes the so-called indirect damage). With an operational concept in hand, the focus was initially directed, albeit in a panoramic manner, towards the most well-known type of indirect damage in Brazil: the dommage par ricochet. The objective was to identify the legal foundations for its compensation and its constitutional basis. This exercise was crucial to draw parallels (and identify points of connection) between the dommage par ricochet and the selected type of damage, which was the true focus of the research: the indirect damage suffered by the same party (usually the creditor), in chain (en cascate), resulting from a contractual breach. Traditionally, one fundamental approach to determining the extent of compensable damage has been found in causation theories (due to the role of causal nexus). Therefore, attention was given to the main causation theories, taking into account their influence on Brazilian law. The next step was to map the complex case law landscape concerning the compensability of indirect damage and, ultimately, to present a critical perspective on the understanding adopted by the Brazilian Supreme Court in the judgment of Extraordinary Appeal No. 608880. Criticisms were primarily directed at the alleged “election” of the theory of direct and immediate damage in Brazilian law, specifically its causal necessity branch, which finds its roots in the thinking of Agostinho Alvim. It was argued that the solution to the problem of compensating indirect damage, from the perspective of civil constitutional law, goes beyond causation theories (especially the theory of direct and immediate damage), requiring the involvement of other elements within the legal system. The main thesis of the work is that, in the face of contract breach, good faith can be a key factor in determining the extent of the duty to indemnify, serving as a basis for establishing criteria for the compensation of indirect damage through contractual interpretation. The ultimate goal is to contribute to the advancement of the field by offering an initial framework for these criteria, thus paving the way for further reflection.