The application of moral damage to legal entities is duly supported and consolidated by Precedent 227 of the Superior Court of Justice, which states that: “The legal person can suffer moral damage”.
Moral damage is that which affects the victim’s image, honor, reputation and good fame; for moral damage to be established, it is necessary to commit a harmful act, which by voluntary action or omission, negligence or recklessness, violates rights and causes damage to others, even if exclusively moral (Article 186, Civil Code).
However, unlike individuals, the moral damage suffered by legal entities affects their objective honor, which is intrinsically rooted in each individual. It is a situation that affects prestige, good name and fame, in other words, characteristics that socially affect legal entities and cause them harm.
With regard to objective honor and the legal entity, the Superior Court of Justice’s understanding in the judgment of a Motion for Clarification received as an Interlocutory Appeal by the Second Panel of the Superior Court of Justice was that for moral damage to the legal entity to be established, offense to objective honor is essential. See
CIVIL AND ADMINISTRATIVE PROCEDURE. MOTION FOR CLARIFICATION RECEIVED AS INTERLOCUTORY APPEAL. TELEPHONE. MORAL DAMAGES. LEGAL ENTITY. PROOF. ANALYSIS OF EVIDENCE. SUMMULA 7/STJ. REVIEW OF THE QUANTUM OF COMPENSATION. IMPOSSIBILITY IN THIS CASE. SÚMULA 7/STJ. (1) This Court has a settled position on the possibility of a legal entity suffering moral damage, under the terms of Precedent 227/STJ, provided there is an offense to its objective honor. However, in order to ascertain whether or not there has been proof of the moral damage suffered, it would be necessary to revisit factual and probative matters, which is forbidden in this court of appeal, in view of Precedent 7/STJ. (2) The amount stipulated as moral damages, when not exorbitant or derisory, cannot be reviewed, due to the obstacle of Precedent 7/STJ. 3. interlocutory appeal not granted. (BRAZIL. Superior Court of Justice. Embargoes of Declaration in the Interlocutory Appeal in Special Appeal No. 2013/0409514-2, of the 2nd Panel of the Superior Court of Justice, Brasília, DF. Reporting Justice Mauro Campbell Marques. March 25, 2014) (emphasis added)
Thus, it is essential to point out that objective honor refers to the offense to reputation. According to Carlos Fontán Balestra, “objective honor is the judgment that others form of our personality, and through which they value it.”[1]
In this sense, it is worth mentioning that the rights set out in Article 5 of the Federal Constitution should also be applied to legal entities, since they also have legal personality. On the subject, Morais states that:
The constitutional protection enshrined in item X of Article 5 refers to both individuals and legal entities, including the necessary protection of one’s image in the face of the mass media (television, radio, newspapers, magazines, etc.)[2].
Now, legal entities have protection of their honor and image, a right duly protected by the Major Law, which is a coercive norm.
In this sense, the Courts have held that for moral damage to a legal entity to be established, there must be a loss of credibility of the company in the commercial sphere. Moral damage, in addition to being configured by moral distress, whether through suffering or pain, is also configured by discomfort that can affect both individuals and legal entities.
For the purposes of demonstrating the application of condemnation for moral damage and also considering the fact that decisions have force and are considered procedural precedents for application to the specific case, it is necessary to set out some decisions in which condemnation for moral damage to the legal entity was condemned.
The Superior Court of Justice decided in Special Appeal No. 1504833/SP[3], in a unanimous decision, to condemn a legal entity for moral damages in the amount of R$50,000.00 (fifty thousand reais) in view of the publication of journalistic material considered harmful, with statements that exceeded the limits of the right to criticize. The legal entity’s personality rights, such as image and honor, were upheld.
Another precedent for analyzing the application of moral damage to legal entities is the judgment in Special Appeal No. 621.401/RJ [4], in which the requirements for the obligation to pay compensation were recognized, in view of the proof of damage to the establishment’s image in the eyes of its customers, as well as objective honor as a result of the risk to the physical integrity of consumers due to a flood that occurred in the establishment. In this case, in particular, see below:
INTERLOCUTORY APPEAL IN SPECIAL APPEAL. CIVIL PROCEDURE AND CIVIL LAW. OFFENSE TO ART. 535 OF THE CPC. ABSENCE. FLOODING OF ESTABLISHMENT LOCATED IN SHOPPING CENTER. INDEMNIFICATION FOR MORAL DAMAGES. LEGAL ENTITY. OFFENSE TO IMAGE AND OBJECTIVE HONOR CONFIGURED. REQUIREMENTS FOR CIVIL REPARATION CONFIGURED. RE-EXAMINATION OF FACTUAL AND PROBATIVE MATTERS. SUMMULA 7/STJ. MORAL DAMAGE. AMOUNT ARBITRATED. REASONABLE. REGIMENTAL APPEAL DISPROVED.1 There is no violation of art. 535 of the CPC when the court of origin resolves, in a reasoned manner, all the issues raised in the civil appeal and declaratory motions. If there is an express statement on the issues necessary for the full resolution of the dispute, even if contrary to the party’s claim, any omission, contradiction or obscurity in the judgment is ruled out.2. The jurisprudence of this Court has been consolidated in the sense of recognizing the possibility of a legal entity suffering moral damage (Precedent 227/STJ), provided that it is demonstrated, as in this case, that there has been an offence against its objective honour (image and good reputation).3. The local court, when assessing the evidence produced in the case file, was categorical in recognizing the requirements that give rise to the obligation to indemnify, due to proof of damage to the establishment’s image in the eyes of its customers, as well as its objective honour as a result of the risk to physical integrity to which consumers were subjected. In these circumstances, it is not possible to review the factual-probatory substrate in the face of Precedent 7/STJ.4 The Superior Court of Justice has established that it is admissible to examine the amount set as moral damages in exceptional cases, when the exorbitance or derisory nature of the amount arbitrated is verified, in flagrant violation of the principles of reasonableness and proportionality, which was not characterized in the case at hand in which the amount of R$ 20,000.00 seems reasonable for the damage caused.5 (AgRg no AREsp 621.401/RJ, Rel. Minister RAUL ARAÚJO, FOURTH COURT, judged on 05/19/2015, DJe 06/22/2015)
In Special Appeal No. 1365284/SC[5], a quantum of compensation was set for the legal entity as a result of the undue registration of its name in the register of defaulters, a fact which directly affected the objective honor of the legal entity.
It should be noted that in all cases it is necessary to recognize the requirements that give rise to the obligation to compensate, as well as the clear offense to the honor, image and social integrity of the legal entity before society and its consumers. In other words, offenses that directly harm the image of the legal entity can be the subject of judicial discussion and possible condemnation for moral damages.
Companies are driven by public opinion and if an injustice affects their reputation in the eyes of their consumers, a claim for moral damages should be made.
Therefore, it is possible to conclude that the subject under discussion, despite being a matter consolidated by the Superior Court of Justice, the convictions and applications to the specific case encourage companies to seek competent judicial protection to guarantee their rights in the light of current legislation and case law.
The Marcos Martins Law Firm is able to advise companies that have already suffered damage to their image and reputation in the eyes of society and their consumers, as a result of excessive and unfair acts practiced by others that have generated an obligation to compensate.
____
[1] FOTÁN BALESTRA, Carlos, Tratado de Derecho Penal, v. IV, p.396
[2] MORAES, Alexandre de. Constitutional Law. 28th Ed. São Paulo: Atlas, 2012.p.54.
[3] REsp 1504833/SP, Rel. Minister LUIS FELIPE SALOMÃO, FOURTH COURT, judged on 01/12/2015, DJe 01/02/2016
[4] AgRg no AREsp 621.401/RJ, Rel. Minister RAUL ARAÚJO, FOURTH COURT, judged on May 19, 2015, DJe June 22, 2015)
[5] REsp 1365284/SC, Rel. Minister MARIA ISABEL GALLOTTI, Rel. p/ Acórdão Minister LUIS FELIPE SALOMÃO, FOURTH COURT, judged on 09/18/2014, DJe 10/21/2014
Questions? Talk to our lawyers and get advice.
[rock-convert-pdf id=“11365”]
