INDENIZAÇÃO PUNITIVA NO CÓDIGO CIVIL BRASILEIRO: A REPETIÇÃO DE INDÉBITO EM DOBRO DO ARTIGO 940 COMO INSTITUTO JURÍDICO EQUIPARADO

Abstract

ABSTRACT: Conceived within the Anglo-American tradition of the 18th century, punitive damages emerge as a distinct form of sanction intended to reflect the role of civil liability through a modern perspective. Originating from case law and customary practices, this foreign institution underscores the inadequacy of compensatory and restitutive functions in restoring the status quo ante in cases of bad faith or significant culpability of the offender, particularly when the wrongdoing stems from the pursuit of personal gain. Thus, the details of the case become crucial in assessing the agent’s conduct, with a rigorous examination of intent. By adopting the Theory of Deterrence, civil law acquires a preventive character, countering the recurrence of egregious harmful acts within social interactions, aiming to safeguard objective good faith in private relations. This article, therefore, traces the historical roots and conceptual evolution of this model over time, highlighting its distinctions from traditional compensatory methods, under the principles of unjust enrichment and full reparation. Finally, the study explores the potential equivalence to the double recovery provision under Article 940 of the Civil Code. Through a theoretical and deductive approach, utilizing qualitative, foundational, explanatory, and bibliographic methods, and viewed through the lens of comparative law, the initial hypothesis is confirmed, with reservations.