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Civil Code Reform Project Proposes New Rules for Civil Liability, Expands Criteria for Moral Damages and Includes Pedagogical Sanctions, Reigniting the Debate on Punishment and Prevention of Illicit Conduct in the Country.
The Bill 4/2025, currently under consideration in the Senate, proposes a comprehensive reformulation of the rules of civil liability.
The text includes, for the first time, the pedagogical function in moral damage convictions and authorizes the removal of profits obtained from illicit acts, even when there is no direct material damage to the victim.
The proposal, presented by the President of the Senate, aims to consolidate criteria for determining extrapatrimonial damages and create instruments for preventive protection.
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Change in Calculation of Damages
Article 944, which addresses the measure of indemnification, receives a new §2, allowing the victim to choose between two paths: a reasonable amount for the violation of a right or, “when necessary,” the removal of profits or advantages obtained by the author of the damage.
The amendment shifts the traditional focus of the calculation, centered solely on the recomposition of loss, and creates the possibility that the economic gain of the offender be returned, even without proof of direct property damage.
Article 944-B also recognizes the “loss of a chance” as compensable damage.
According to the proposal, the value must be calculated based on the fraction of benefits that the opportunity could have generated if it had materialized.
The text also allows the judge to estimate the value of the damage when exact proof is excessively difficult or costly, as long as the loss is of minor economic significance.
Criteria for Moral Damages and Pedagogical Function
Article 944-A governs the extrapatrimonial damage and details the criteria for quantification.
The value must consider the nature of the legal asset affected, parameters adopted by the courts, and specific characteristics of the case, such as impact on the victim’s life, possibility of reversal, and intensity of the offense.
The text also includes a §3, allowing the judge to impose a pecuniary sanction of a pedagogical nature in situations of willful misconduct, gross negligence, reiteration of harmful conduct, or cases of special gravity.
§4 authorizes increasing this sanction up to four times the value of moral damage, taking into account the economic condition of the offender.
Sections 5 and 6 advise that the judge consider previous convictions and foresee the possibility of reversing part of the amount to public funds or charitable entities linked to the place of the damage.
According to legal experts monitoring the debate, the measure explicitly introduces a punitive-pedagogical function in civil liability, a concept already discussed in doctrine and partially recognized by jurisprudence.
Article 947 maintains full reparation as a general rule and admits, in cases of extrapatrimonial damage, reparation in kind, such as public retraction, right of response, or publication of the sentence, including in digital media.
According to experts in civil law, this provision expands forms of recomposition without solely depending on monetary compensation.
Preventive Protection and Duty to Avoid Harm
Article 927-A introduces the so-called preventive protection of unlawfulness, establishing that those who create a risk situation must take measures to prevent foreseeable damage and reduce its effects.
§3 indicates that this protection aims to prevent the practice, repetition, or exacerbation of unlawful conduct, regardless of intent or fault.
According to the project’s justification, the rule seeks to align the Civil Code with a logic of prevention and risk management, encouraging compliance and corporate governance policies.
Experts assert that the change tends to clarify the legal duty of prevention on the part of companies and agents identifying potential harms.
Reactions from the Market and Legal Community
The proposals have been received with caution by lawyers and representatives from the business sector.
In specialized publications, experts warn that the combination of pedagogical sanctions, the possibility of multiplying the indemnification up to four times, and consideration of the economic capacity of the offender could generate uncertainties regarding the value of convictions and increase litigation and insurance costs.
According to analyses from lawyers at major firms, the model approaches punitive practices present in other legal frameworks and could heighten the unpredictability of liabilities.
On the other hand, some defend that the proposed criteria bring greater clarity and objectivity, in addition to incorporating preventive and educational purposes that have already been recognized by jurisprudence.
Criteria and Techniques Already Applied in the Courts
To reduce interpretative divergences, the project incorporates parameters already used in judicial decisions.
The text formalizes the bifunctional arbitration criterion of the Superior Court of Justice (STJ), which combines assessing the severity of damage with analyzing precedents.
It also advises that the judge expressly justify factors of increase or reduction of the value according to the severity and circumstances of the case.
According to the explanatory memorandum of the bill, the intention is to standardize judicial practice and “ensure predictability in determining indemnifications.”
The justification emphasizes that the text maintains the reparative function as the central axis, but incorporates preventive and pedagogical elements to respond to damaging conduct that causes collective or systemic impact.
Applications in Digital and Competitive Environments
The new §2 of Article 944, which authorizes the determination of a reasonable amount for the violation of a right or the removal of undue gains, is expected to have significant impact in cases involving personal data protection, use of digital platforms, and competition relations.
Experts evaluate that, in these contexts, the profit gained from the illicit act could exceed direct damage, and the norm offers instruments to neutralize economic advantages derived from unlawful practices.
Processing and Next Steps
The Bill 4/2025 is still under consideration in the Senate committees.
The text provides for a vacatio legis of 365 days after possible approval and publication, a period intended for contract adaptation, policies, and internal procedures.
According to the House’s technicians, the period would allow for a gradual implementation of the new rules and the review of compliance programs.
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