A situação econômica das partes como critério distributivo na quantificação das indenizações

Abstract

This work aims to analyze if the criteria of “economic situation of parties”, as criteria of damages quantification that is discussed by Brazilian legal scholarship and legal precedents, can be interpreted as a instrumentalization of principles of distributive justice. To do this, it analyzes the problem of the damages quantification in Brazilian legal practice, pointing possible ways of how economic situation of defendant and plaintiff can be taken in consideration. After that, analyzes this applications of the criteria based on the philosophical discussion about the foundations of Tort Law, especially centered on the debate about the concepts of corrective and distributive justice. Then, maintains the hypothesis that it is possible to interpret the criteria as incorporating principles of distributive justice, making a re-reading of the criteria based on this concept. Therefore, it is eminently a theoretical research, since it aims to interpret, based on philosophical concepts, arguments used by Brazilian legal scholarship and legal precedents. As a result, maintains that the criteria implies a redistribution of the burdens of damages according to the wealth of the parties. It concludes that this interpretation does not introduce contradictions in the Brazilian tort system and argues that the criteria requires a joint assessment of the economic situation of the plaintiff and the defendant.