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The Civil Code Reform Project Proposes New Rules for Civil Liability, Expands Criteria for Moral Damages, and Includes Pedagogical Sanctions, Reviving the Debate on Punishment and Prevention of Illegal Conduct in the Country.
The Bill 4/2025, currently in the Senate, proposes a comprehensive reform of the rules regarding civil liability.
The text includes, for the first time, the pedagogical function in judgments for moral damages and authorizes the removal of profits obtained from illegal acts, even when there is no direct material harm to the victim.
The proposal, presented by the Senate president, seeks to consolidate criteria for determining non-pecuniary damage and create instruments for preventive protection.
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Change in the Calculation of Compensation
Article 944, which deals with the measure of compensation, gains 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 perpetrator of the damage.
The change shifts the traditional focus of the calculation, which was centered only on the restoration of the 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 a compensable damage.
According to the proposal, the value should be calculated based on the fraction of benefits that the opportunity could have generated had it materialized.
The text also allows the judge to estimate the damage value when exact proof is excessively difficult or costly, provided that the loss is of small economic significance.
Criteria for Moral Damage and Pedagogical Function
Article 944-A regulates non-pecuniary 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 cases of intent, gross negligence, reiteration of harmful conduct, or cases of special gravity.
§4 authorizes the increase of this sanction up to four times the value of moral damage, taking into account the economic condition of the offender.
Sections §§5 and 6 guide that the judge consider previous convictions and foresee the possibility of redirecting part of the amount to public funds or charitable entities related to the location of the damage.
According to jurists following the debate, the measure explicitly introduces a punitive-pedagogical function into civil liability, a concept already discussed in doctrine and partially recognized by jurisprudence.
Article 947 maintains full compensation as the general rule and allows, in cases of non-pecuniary damage, reparation in kind, such as public retraction, right of reply, or publication of the sentence, even in digital media.
According to civil law experts, this provision expands the ways of restitution without relying solely on monetary compensation.
Preventive Protection and Duty to Avoid Damage
Article 927-A introduces the so-called preventive protection of illegal conduct, establishing that those who create a risk situation must take measures to avoid foreseeable damage and reduce its effects.
Section §3 indicates that this protection aims to prevent the practice, repetition, or worsening of illegal conduct, regardless of intent or negligence.
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 affirm that the change tends to clarify the legal duty of prevention on the part of companies and agents who identify potential damages.
Reactions from the Market and Legal Community
The proposals have been received with caution by lawyers and representatives of the business sector.
In specialized publications, experts warn that the combination of pedagogical sanction, the possibility of multiplying compensation up to four times, and consideration of the economic capacity of the offender may create uncertainties regarding the amount of convictions and increase litigation and insurance costs.
According to analyses from lawyers from large firms, the model approaches punitive practices found in other legal systems and may elevate the unpredictability of liabilities.
On the other hand, some advocate 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 interpretation divergences, the project incorporates parameters already used in judicial decisions.
The text formalizes the biphasic arbitration criterion of the Superior Court of Justice (STJ), which combines assessment of the damage severity with analysis of precedents.
It also guides that the judge explicitly substantiate factors for increasing or reducing 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 the determination of compensations.”
The justification emphasizes that the text maintains the reparative function as the central axis but incorporates preventive and pedagogical elements to address harmful conduct that causes collective or systemic impact.
Applications in Digital and Competitive Environments
The new §2 of Article 944, which authorizes setting a reasonable amount for the violation of a right or the removal of undue gains, is expected to have a significant impact in cases involving personal data protection, use of digital platforms, and competition relationships.
Experts evaluate that, in these contexts, the profit obtained from the illicit act may exceed the direct damage, and the rule provides instruments to neutralize economic advantages arising from illegal practices.
Processing and Next Steps
Bill 4/2025 is currently undergoing processing in the Senate committees.
The text provides for a vacatio legis of 365 days after eventual approval and publication, a period intended for the adaptation of contracts, policies, and internal regulations.
According to House technicians, the period would allow for the gradual implementation of new rules and the review of compliance programs.
With provisions that expand the possibilities of compensation, introduce pedagogical sanctions, and impose preventive duties, the debate on reforming the Civil Code raises a central question: should Brazilian civil liability remain limited to damage compensation or begin to incorporate punitive and educational mechanisms as a way to discourage illegal conduct?
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Uma pessoa reagiu a isso.