A certeza do dano como limite de atuação da função preventiva da responsabilidade civil

Abstract

The present research was elaborated, without the intention of exhausting the theme, in order to examine the relation between the so-called preventive function of civil liability and the element of damage, historically considered essential for deflagrate the duty of civil liability, its characteristics and moments of incidence, in order to verify possibilities of direct preventive action of the institute, under the perspective of the functional evolution and the recognition of unfair damages, allied to the civil-constitutional methodology, with the objective to the full protection of the human person, without implying in violation to the guiding principles of the matter, the neminem laedere and full reparation. It also has the scope to raise the debate about the remodeling of civil responsibility by the assumption of new functional profiles in addition to the reparatory one, which has always been its greatest characteristic, notably punitive and preventive, and to study how its functions relate to each other and assist in the fulfillment of the ultimate function of civil responsibility, which is to return the victim to the status quo ante. Through a critical analysis of the assumptions of preventive civil liability and the instruments of action nominated by the doctrine, it is sought to emphasize that civil liability needs the element of damage to act, being controversial to speak of civil liability without damage. Finally, the possibility of incorporating prevention in the area of civil liability can be based on the reimbursement of the costs incurred with preventive measures adopted in order to avoid imminent damage, so as to provide safe criteria for the interpreter for this purpose and provide legal certainty to the victim who proactively acts to prevent the occurrence of damages