Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
Recently, the Superior Court of Justice (STJ) issued Precedent 642, which deals with the possibility of passing on the right to compensation for moral damages to the heirs after the death of the holder, granting them the active legitimacy to file or pursue the compensation action in which the violation of the deceased’s personality rights is discussed.
The ruling was approved by unanimous vote and originated in Bill No. 1237, reported by Justice Benedito Gonçalves, with the following text:
Precedent 642: The right to compensation for moral damages passes with the death of the holder, the victim’s heirs having active legitimacy to file or pursue the action for compensation
With the approval of the precedent, the STJ established the understanding that the heirs of the holder of the violated right have legal standing to file an action for compensation for moral damages due to an offense of a very personal nature suffered by the deceased .
The summarized understanding originated from the judgment handed down by the Third Panel of the collegiate body, in an interlocutory appeal in the Motion for Divergence in Special Appeal no. 978. 651/SP, which held that, although the moral violation had only affected the victim’s subjective rights, the right to the respective compensation arising from the unlawful act is transmitted with the death of the right holder, so that the estate or the heirs have active legitimacy to file an action for compensation for moral damages, as a result of the offense suffered by the deceased, given the transmissibility of the right with succession.
In this case, what is transmitted, by hereditary right, is the right to sue, in court, the person responsible for the unlawful act that caused the moral damage to the deceased victim. The issue of the personality right of the individual who suffered the offense is not being discussed, since this right is very personal and inherent to its holder, but rather the patrimonial right to pursue and receive possible compensation on behalf of the deceased.
There is already a legal provision in the Civil Code, in its article 943, which expressly authorizes the right to demand compensation and the obligation to provide it, due to the transmission with the inheritance from the death of the right holder. However, there was a debate about the possibility of claiming moral damages, since in this case the offense is directed exclusively at personal attributes and rights intrinsic to the individual.
This is because moral damage is nothing more than the offense that affects the victim as a person, damaging the individual’s personality rights, such as honor, dignity, intimacy, image, good name, and other attributes intrinsic to the person, that is, the set of everything that is not susceptible to economic value and that can be quantified a priori.
However, with the understanding of the Superior Court of Justice, the issue has been addressed to determine that, even if the rights violated are intrinsic to the victim, with their death their heirs have the right to claim compensation or assume the active position in an action already in progress, since for them, the transfer of the compensation in the patrimonial sphere arises, which is totally admissible to be demanded.
Thus, in this context, in the event of an unlawful act that causes injury to a very personal right, with the death of the holder of the right and the opening of the succession, the heirs have the right to pursue, in court, the liability of the individual who caused the offense and the consequent receipt, on behalf of the deceased , of compensation as a form of reparation for the moral damage suffered, which will become part of the estate’s assets and will later be passed on to the heirs.
Marcos Martins Advogados is aware of this issue and is prepared to provide qualified legal advice to its clients.
