Comparative Tort Law and Economics: Strict Liability in Brazilian Legal Practice

Abstract

Law and economics has been received skeptically outside of the United States. Attributing this phenomenon to the parochialism, Nuno Garoupa suggests that the change in such a framework requires the development of academic works that use comparative methodology and that perform the integration of law and economics to local legal doctrines. Tort law provides fertile ground for law and economics comparative studies. Contemporary phenomenon is the existence of a dualistic system of liability, performing the coexistence, in relative harmony, of the basic rule of negligence with the strict liability, applicable in cases specifically provided for. In legal practice, however, it is a complex issue, revealing the existence of a gray area that makes it difficult to establish a and consistent dividing line. Michael Faure consigns that among the few attempts to establish a clear cut test, highlight those performed by William Landes and Richard Posner that use economic analysis, specially the fundamentals crystallized in the Hand formula.The basic working hypothesis of this paper is that it is possible to apply fundamentals of economic analysis of law with a view to establish a borderline between negligence and strict liability in Brazil. The paper is structured in to two parts. The first part presents fundamentals of strict liability doctrine, exploring the traditional legal theory and economic analysis of law. The second part presents empirical evidence of the application of the fundamentals of economic analysis of law as criterion to apply strict liability in comparative law and in Brazil, giving emphasis to the innovative general clause of strict liability for the risk of the activity of the sole paragraph of article 927 of the Brazilian 2002 Civil Code. The conclusion performs a synthesis of the principal ideas developed.