O conceito e os limites do dano moral: um estudo sobre a ressarcibilidade de outras categorias de dano não patrimonial no direito brasileiro

Abstract

The current dissertation deals, in general, with moral damage. More specifically, it deals with the various types of damage that have been proposed in the Brazilian legal system and accepted by doctrine and jurisprudence as species of moral damage or as autonomous categories of “nonpecuniary damage”: aesthetic damage, damage to the image, moral damages of the legal entity, existential damage, moral damage due to affective abandonment, temporal damage, environmental damage, collective moral damage and social damage. The main purpose of the work was to verify if these types of non-pecuniary damage created more or less recently are, indeed, species of damages recoverable in the Brazilian legal system. This purpose was intended to be achieved in three steps: first, it was sought – using a legislative and bibliographic analysis, made from a historical and comparative perspective – the concept and limits of moral damage. In this, mainly, consisted the first part of this dissertation. Afterwards, attempt has been made to understand the content and scope of the non-patrimonial damage figures that was proposed to investigate, systematizing them. For this, content analysis was used as the main methodological procedure, and it has drawn on primary and secondary data: legislative analyses, survey of jurisprudential decisions and consultation of bibliographic material. Furthermore, both descriptive and comparative methods were adopted. Finally, considering the conceptual premises established in the first part of this work, and after the understanding of each of the alleged modalities of non-pecuniary damage studied, it was tested its suitability in the Brazilian civil liability system, in order to verify if they can be compensated as moral damage as such or as an autonomous kind of damage. In the end, it was concluded that, of all the damages investigated, only the aesthetic damage and the damage to the image consist of moral damage and are, as such, recoverable – they are not, however, autonomous categories and their compensation should not be cumulated to the compensation of moral damage. The others do not fit into the concept of moral damage, nor can they be repaired as independent modalities of non-pecuniary damage, so there is no justification for replacing the notion of moral damage with the much broader idea of “non-pecuniary damage”, as a genus of which are species as many types of damage as it is possible to imagine. It is therefore necessary to rethink the place given to these new damages in the Brazilian civil liability system.