Strict Civil Liability: Damages to Third Parties

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Causing harm does not always make you liable for the same reason. In some cases, the victim must prove that the person who acted was at fault. In others, it is enough to show the loss and its link to the responsible party’s activity. This distinction between fault-based and strict liability decides who wins and who loses thousands of disputes involving individuals, consumers, and businesses every year.

What Fault-Based Liability Is

Fault-based civil liability is the general rule in Brazilian law. It requires proof of four elements: the wrongdoer’s conduct, the harm the victim suffered, the causal link between the two, and, above all, the fault of the person who caused the loss.

Fault, in this context, covers both intent (dolo, the deliberate purpose of causing harm) and fault in the strict sense (culpa), which shows up as recklessness, negligence, or lack of skill. Without this subjective element, there is no duty to pay compensation under the ordinary rule.

This type of liability rests on Article 186 of the Civil Code, under which anyone who violates another person’s right and causes harm through a voluntary act or omission, negligence, or recklessness commits an unlawful act. Article 927 completes the rule by requiring whoever commits an unlawful act to repair the damage.

In practice, the burden of proving fault falls on the victim. The victim must gather evidence that the person who caused the harm acted wrongfully. This burden makes fault-based liability harder to establish in court, because a person’s state of mind does not always leave a clear trail.

Strict Liability and the Risk Theory

Strict liability breaks with that logic. Here, fault no longer matters. The victim only has to prove the harm and its causal link to the responsible party’s activity for a duty to pay compensation to arise, regardless of whether the wrongdoer acted carefully or carelessly.

The basis of this type of liability is the risk theory. Anyone who carries on an activity that creates danger for others, or who profits economically from a risky situation, must bear the harm it causes. The central idea is that the burden of the loss should follow the benefit of the business.

The sole paragraph of Article 927 of the Civil Code is the legal gateway to this regime. It provides that there is an obligation to repair the damage, regardless of fault, in cases specified by law or when the activity normally carried on by the wrongdoer, by its nature, creates a risk to the rights of others.

This general clause was an important innovation of the 2002 Code. Before it, liability without fault required express provision in a specific statute. Today, a judge can apply the strict liability regime whenever an activity, by itself, exposes third parties to a heightened and recurring risk.

What defines the strict liability regime is the nature of the activity, not the good intentions of the person carrying it out.

Under strict liability, the victim does not have to prove fault: the harm and its link to the risky activity are enough.

It is worth noting that strict liability does not mean unlimited liability. The defendant can still defend itself by showing that the harm resulted from an external fortuitous event, force majeure, or the victim’s sole fault. These situations break the causal link and eliminate the duty to pay compensation.

When the Law Imposes Strict Liability

Beyond the open-ended clause in the Civil Code, several statutes expressly provide for strict liability. The Consumer Protection Code is the best-known example. Under its Article 14, a service supplier is liable for harm caused to consumers by defects in the service, regardless of fault.

This design protects the more vulnerable party in the relationship. A consumer injured in a consumption-related accident does not have to investigate the company’s internal structure or point to which employee failed. Proving the defect, the harm, and the link between them is enough to obtain compensation.

The Constitution also adopts strict liability for the government. Article 37, paragraph 6, provides that public-law entities and providers of public services are liable for harm their agents cause to third parties, with a right of recourse against the responsible agent in cases of intent or fault.

There are also specific situations scattered throughout Brazilian law, such as liability for environmental damage, an employer’s liability for accidents arising from risky activity, and a carrier’s liability for the safety of its passengers. In all of them, the legislature chose to do away with the debate over fault.

Practical Examples for Individuals and Businesses

The difference between the two regimes becomes clear in everyday situations. Imagine a pedestrian struck by a distracted driver. To be compensated, the pedestrian must show that the driver acted recklessly. This is a typical case of fault-based liability, in which fault must be proven.

Now consider a customer who buys a household appliance that explodes during normal use and causes burns. Here, the manufacturer is strictly liable. The consumer does not have to point to the failure on the assembly line. Proving the product defect and the harm suffered is enough.

For a business, the distinction has direct strategic and financial weight. Companies engaged in dangerous activities, such as freight transport, handling chemicals, or power generation, tend to fall under the strict liability regime. This increases exposure to compensation claims and makes risk management a necessity, not a luxury.

This landscape explains why prevention has become central to business operations. Insurance coverage, safety protocols, inspection records, and well-drafted contract clauses act as barriers against losses that, under strict liability, are unlikely to be avoided merely by claiming the company acted with due diligence.

For individuals, knowing which regime applies changes how to seek compensation. When the relationship is one of consumption or involves a risky activity, the victim starts from a more favorable position because there is no need to prove fault. Knowing which scenario fits your case guides everything from gathering evidence to the strategy of the lawsuit.

Frequently Asked Questions

What is the essential difference between fault-based and strict liability?

Fault-based liability requires the victim to prove the fault of the person who caused the harm, meaning intent, recklessness, negligence, or lack of skill. Strict liability dispenses with that proof: it is enough to show the harm and its causal link to the responsible party’s activity. The first is the general rule; the second applies when the law so provides or when the activity creates a heightened risk to others.

Does strict liability mean the person who caused the harm will always be held liable?

No. Defenses exist even under strict liability. The responsible party can avoid the duty to pay compensation by proving an external fortuitous event, force majeure, or the victim’s sole fault, because these situations break the causal link. What changes is that the wrongdoer’s fault stops being the central issue at trial, and the focus shifts to whether harm occurred and whether it is linked to the activity.

How can a company reduce its exposure to strict liability?

A company cannot escape strict liability when it stems from the very nature of its activity, but it can mitigate the financial impact. Buying adequate insurance, maintaining documented safety protocols, training teams, recording inspections, and reviewing contracts are measures that reduce how often harm occurs and strengthen the defense. Preventive risk management is usually cheaper than paying repeated compensation awards.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.