Law was called to debate about its suitability to the actual agreement that
fundamental rights are immediately effective, enforcing principles instead of
positivistic legalism.
In this context, civil liability appears as an institute able to resize Law, even to
rupture the classical public-private dichotomy toward a social-based model.
This remodeling brings to light the objective liability doctrine, charging those
who earn benefits with some action, disconnecting it from the subjective guilt aspect,
rooted to the modernity’s paradigm.
This dissertation intends to show that the civil liability is, in the postmodern
society, an effective instrument of fundamental rights.
To achieve this goal, this study repositioned legal categories that hold the
position of assumptions of civil liability such as private autonomy, legal duty, damage,
injury and repair.
The research was based on literature and, although wishing to participate on a
global discussion (at least western speaking), it focuses on the analysis of the
brazilian reality.
In order to accomplish it, I analyze the single paragraph of article 987 of
“Código Civil Brasileiro” from 2002 to present it as an important step toward the
necessary social functionalization that permeates civil law.
Besides the idea that objective civil liability answers better the demands of
contemporary society, this study also presents some thoughts about the existing
legal apparatus to suggest that its structure needs to be adjusted to the effectiveness
of fundamental rights.
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