Influxos da responsabilidade civil na seara das relações familiares: possibilidades e limitações quanto à ocorrência de danos extrapatrimoniais no interno da família contemporânea

Abstract

This paper adresses the existence of a confluence zone between the Tort Law and family law, embodied in the figure of the possible harm suffered by the off-balance sheet nature of human persons within the family unit. It stars from the premise that this interpenetration is the result of the movement of revaluation of the result of the person, whick was intensified after the two world wars and lifted the center condition of the whole law, and to the protection of its life with dignity to ratio essendi of the Democratic Estate of Law. On this track, Civil Liability expanded to think about the evaluation of a range of further damage through new repair filters, in order to protect the person more widely. The Family law, in turn, adopted the paradigm of diversity and elected affection as its most important value. Henceforth, the state’s withdrawal from this democratic family scene was an achievement, leaving room for their choices experiences and idiosyncrasies. Following this focus, this study suggests that the extensive damage repair caused to a person is an imperative, including those related to off-balance occurred in the internal family, since they are not directly related to breach of family duties, but covered by the general clause of illegality CC/02 186, 187 articles. As a central category of the analyzed problem, we proceed to a study of moral damages, according to the framework of the theory of liability, with emphasis on by the discussion of the legal nature of this kink of damage repair. Hence, we advance to understand better the contemporary family, seeking to place the value of responsibility in the face of it, and for the assessment of two new and specific types of off-balance sheet damage, which has raised doubts among family-doctrine: the damage caused by the loss of a chance. Finally, it brings up a more detailed analysis on the issue of affect as a legal value, and the duties that meet certain family relationships, to finally get to understand how the breaking or violation of affection within the family has been understood and treated according to the Brazilian law, in the centre of whick engage in an intense debate about whether the negative of affection, in the context of loving relationships and, above all, paternal-branch relations, could raise the compensation for alleged damages it causes.