Thyago Rodrigo da Cruz
Lawyer at Marcos Martins Advogados
Before being recognized as an intangible asset, an integral part of the business establishment, it should be clarified that business honor, above all, is a personality right, arising from the registration of the business company with the Public Registry of Commercial Companies, an event that constitutes the initial term of its legal existence.
It is worth mentioning the magisterium of the illustrious professor Rubens Limongi França who, when delimiting his famous concept of personality rights, states that they are “legal faculties whose object is the various aspects of the subject’s own person, as well as their essential projection in the outside world”¹, thus covering the intrinsic and extrinsic aspects relating to the person.
In this sense, corporate honor, for obvious reasons, will never be subjective in nature, since the legal entity that owns it does not have a psyche capable of being tarnished or influenced by external factors. However, it will be subject to objective injuries² , which ultimately concern the public’s perceptions of its image – whether positive or negative – which constitute what we call corporate reputation.
This process of building and consolidating corporate honor, as already mentioned, is absolutely laborious, requiring time, money and, above all, discipline on the part of the company and its respective employees, all of whom are focused on the goal of achieving and maintaining unharmed this right of personality, an integral and inseparable part of their business establishment.
This is why article 52 of the Civil Code is explicit in determining that “the protection of personality rights shall apply to legal persons, where applicable”, since these rights are essential to the survival of the business company in the market.
Maria Helena Diniz³, regarding the beginning and extent of the legal person’s personality rights, states that:
The capacity of the legal person logically derives from the personality that the legal order recognizes for it at the time of its registration. This capacity extends to all fields of law. It can exercise all subjective rights, not limited to the property sphere. It has the right to identify itself, having a name, a domicile and a nationality. Therefore, it has the right to personality, such as the right to a name, freedom, existence and good reputation (CC, art. 52).
In the same vein, Pablo Stolze Gagliano and Rodolfo Pamplona Filho⁴, giving a brief historical recap of the aforementioned article 52, also end up recognizing the true personality of the legal person, namely:
This provision arose from Professor COUTO E SILVA’s criticism of the preliminary draft of the General Part drawn up by Minister MOREIRA ALVES, as shown by the latter’s comment: “I also welcome the new article 23 of Professor Couto e Silva’s Observations, which orders the protection of personality rights to be applied to companies, where applicable. I am of the opinion, however, that the article would be better placed in the general provisions on legal persons (and not, as Prof. Couto e Silva suggests, in an exclusive chapter on natural persons), where it would come immediately before art. 49 of the Draft (which deals with the dissolution of legal persons). I also believe that instead of company, we should say legal person”. […] Therefore, as a subject of law, the legal person, just like the natural person, has its rights to moral integrity (under the objective aspect), image, secrecy etc. preserved.
However, some scholars are averse to the idea of the similarity of moral reparation based on the personality of the legal person with that attributed to the human person, insofar as the damage caused to the latter’s morals is of a very personal nature, deriving from their dignity as a human person, and it is certain that such an attribute can never be attributed to the legal person, with Caio Mário da Silva Pereira⁵ being a supporter of such an understanding, namely:
The right to honor and image of the legal person is also considered. The Superior Court of Justice has even settled on the understanding that, by violating these rights, legal entities can be liable for extra-patrimonial damage. STJ Precedent No. 227 states that: “Legal entities can suffer moral damage”. […] However, due to the essentially economic effects of damage to such rights, it should be emphasized that they are not to be confused with the legal assets reflected in the human personality, which receive special protection from the legal order, due to the general clause of protection inserted in art. 1, III, of the Federal Constitution.
Silvio Romero Beltrão⁶ understands this in the same way:
I understand the possibility of compensation for moral damages to collective entities, and I find restrictions on the applicability of the rules relating to personality rights in relation to legal persons, since this possibility derives from the company’s ability to produce profits and not from the principle of human dignity. […] The grounds for compensation for moral damages against natural persons are different from the grounds applied to legal persons. The moral damage caused to a natural person is based on the violation of human dignity, while the moral damage caused to a legal person is based on its immaterial assets, in the context of the company’s objective honor. […] Given these arguments, there is no escaping the fact that legal entities do not have personality rights, despite the fact that they are protected by the legal system in terms of the possibility of compensation for off-balance sheet damage suffered.
However, this understanding, adopted by Caio Mário da Silva Pereira and Silvio Romero Beltrão, does not seem to us to be the most appropriate for the Brazilian legal system, to the exact extent that honor – whether in its subjective or objective sense – is an irrefutable corollary of the personality attributed to the legal entity when it is registered with the Public Registry of Mercantile Companies, which is why it should be granted all the protection and attributes proper to the nature of such a right.
In this sense, the definition provided by Antônio Carlos Morato⁷ deserves special mention. In our opinion, he rightly understands personality rights “as rights that deal with the person himself and his reflexes and that are recognized to the human person and attributed to the legal person”. This understanding finds full support in Precedent No. 227 of the Superior Court of Justice, according to which “a legal person can suffer moral damage”, which evidently denotes the existence of a legal personality.
It is therefore clear that corporate honor, also known as corporate reputation, which is objective in nature and an integral part of the company’s business establishment, must be protected by the rules governing personality rights, which are attributed to legal entities by the express provisions of article 52 of the Civil Code, and that the legal provisions relating to the prevention or reparation of any injuries that may occur to them are fully applicable.
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¹FRANÇA, Rubens Limongi. Institutions of civil law. 5. ed. rev. and updated. São Paulo: Saraiva, 1999, p. 935.
²GAGLIANO, Pablo Stolze. PAMPLONA FILHO, Rodolfo. Novo curso de direito civil, volume 1: parte geral. 13. ed. São Paulo: Saraiva, 2006, p. 216.
DINIZ, Maria Helena. Curso de direito civil brasileiro, vol. 1: teoria geral do direito civil. 20. ed. rev. e aum. de acordo com o novo Código Civil (Lei 10.406, de 10-1-2002), São Paulo: Saraiva, 2003, p. 237.
⁴Ibidem, p. 239
⁵PEREIRA, Caio Mário da Silva. Institutions of civil law: volume 1: Introduction to civil law: general theory of civil law. 21st edition revised and updated according to the Civil Code of 2002. Rio de Janeiro: Forense, 2006, p. 340.
⁶BELTRÃO, Silvio Romero. Personality rights: according to the New Civil Code. São Paulo: Atlas, 2005, pp. 95-96.
⁷MORATO, Antônio Carlos. General framework of personality rights. Revista da Faculdade de Direito da Universidade de São Paulo, v. 106/107, Jan./Dec. 2011/2012, p. 124.
