RESP 1.159.242 – SP: THE NEED FOR A SPACE OF "NON-LAW" IN THE LIQUID MODERNITY

• Autor(a) principal: Esser, Carolina Diamantino
• Data de Publicação: 2014
• Outros Autores: Penna, Iana Soares de Oliveira
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista da Faculdade de Direito UFPR (Online)
• Texto Completo: https://revistas.ufpr.br/direito/article/view/36070
• topic: Law. Civil law.; Affection. Civil Responsibility. Liquid modernity. REsp 1.159.242 – SP.; Direito. Direito civil.; Afeto. Modernidade líquida. REsp 1.159.242 – SP. Responsabilidade Civil.

This paper critically analyses the decision of the Brazilian Superior Court of Justice (STJ) under the Special Appeal (REsp) 1.159.242 – SP, in which a father was ordered to pay R$ 200,000.00 (two hundred thousand reais – about US$106,000.00 at the time of the trial) to his daughter, because of emotional abandonment. The trial, held in April 2012, raised discussion on the legal nature of the affection in the Brazilian legal system; the way the matter was treated by that court is subject of criticism regarding several aspects (doctrinal, jurisprudential and sociological). Under the doctrinal aspect, there is the understanding that the nature of the affection does not admit its treatment as a worthy legal principle of indemnity. Also, the Courts of Justice of São Paulo and Minas Gerais, in their turn, are not following the STJ after the decision under discussion, on the grounds that in such cases there is no tort giving rise to the duty to indemnify. From a critical sociological perspective, one may question the decision of the STJ based on the theory developed by Bauman, under which we operate in the so-called “liquid modernity”, at which human relationships and feelings have been reduced to money and consumption. From the presented arguments we conclude there is a need for a space in which the intervention of the law is not feasible, due to the impossibility of solution of conflicts and the need of autonomy preservation. This space is called by Rodotà as “space of non-law”.