The valuation of moral damage against the particularities of a specific case

Abstract

This study aims to discuss the use of a methodology to reach the amount for the compensation of moral damages. For this purpose, we seek to answer the following question: to what extent is it possible to use a specific method in the Brazilian judiciary system to value the amount of the compensation of moral damage considering the complexity of establishing criteria for its evaluation? The research method is dialectical, which seeks, through investigations of the Brazilian legal reality, a study of the decisions of higher courts, and their consequences, considering that the facts cannot be considered outside a social context, analyzing contradictions that transcend and seek solutions.Therefore, the general objective is to analyze the means of valuing moral damage in the Brazilian judiciary and as specific objectives, to present key concepts for this study such as moral damage, presumed damage and civil liability, discuss recent judgments of the Brazilian superior courts, discuss the punitive nature of the reparation, so that there is no illicit enrichment of the party to be repaired and expose the existing methods for quantifying the off-balance sheet damage, citing the benefits and negative points. In conclusion, it is highlighted that a methodology for the determination of objective and subjective criteria is crucial, with the purpose of reaching the heart of the moral damage institute, effecting the reparation of the injured party, together with the punishment of the offender, so that, the despite having systematized criteria, there is a consideration of the peculiarities of the specific case, so that there is still a discretion on the part of the judge.