The bill of Civil Code reform established the application of a two-phase method to quantify nonpecuniary damage, in line with doctrine and caselaw.
Civil Law, whose origins date back to Roman Law, regulates the entire life of the human being since conception, by ensuring the rights of the unborn, until death, by governing inheritance and succession, in addition to essential aspects of life, such as obligations, contracts, marriage, and divorce.
The reform bill, prepared by a Special Committee of jurists, and spearheaded by Senator Rodrigo Pacheco through Bill No. 4/2025, aims to update the Civil Code, ensuring greater legal certainty and stability to the legal system.
The initiative was attended by six justices of the Superior Court of Justice (STJ), 5 justices, 5 judges, and several jurists, with the Committee of Jurists chaired by Justice Luis Felipe Salomão (STJ), and having Justice Marco Aurélio Bellizze (STJ) as Vice-President, and law professors Flávio Tartuce and Rosa Maria de Andrade Nery as general rapporteurs.
The reform brought adjustments to several articles and introduced a new Book covering digital civil law. The new Article 944-A stands as one of the relevant innovations, which set forth the two-phase method of quantifying nonpecuniary damage.
Quantifying nonpecuniary damage has always been a challenge for judges. As Justice Nancy Andrighi points out, this is an “extremely difficult” task[1], because, unlike pecuniary damage, nonpecuniary damage cannot be measured economically, after all, one does not attribute a price to someone’s pain or suffering, so that damages are compensatory and pedagogical in nature, seeking to mitigate the victim’s losses and discourage harmful conduct.
Historically, judges have been based on the criterion of reasonableness, weighing the economic conditions of the parties and the consequences of the harmful conduct. However, to assist in this task, Justice Paulo de Tarso Sanseverino proposed, in his doctoral thesis published in 2010, the adoption of the two-phase method to quantify nonpecuniary damage.
This method is divided into two phases: in the first, a basic compensation value is set based on the caselaw of the local court and STJ. In the second phase, this amount is adjusted according to the peculiarities of the concrete case, taking into account factors such as severity of damage, culpability, possible contribution of the victim, and economic condition of the parties.
In 2019, Issue 125 of Jurisprudência em Teses by STJ supported this understanding, establishing that “the setting of the amount owed as compensation for nonpecuniary damage should follow the two-phase method, which combines the criteria of valuing the circumstances of the case and the legal interest of the aggrieved party, minimizing any arbitrariness.”
Article 944-A of the Civil Code reform bill translates this understanding by establishing clear criteria for the quantification of nonpecuniary damage. Its paragraph 1 defines that the valuation should take into account the nature of the interest harmed, and the compensation parameters adopted by the courts in similar cases. The extent of the damage should consider the peculiarities of the specific case, allowing adjustments for greater or lesser compensation.
Paragraph 2 establishes parameters such as the impact of the damage on the professional, family, and social life of the victim, as well as the degree of reversibility of the damage, and the degree of harm to the interest.
Paragraph 3 provides for the possibility of a pecuniary sanction of a pedagogical nature in cases of special gravity, when there is intent or gross fault of the perpetrator or repetition of harmful conduct. Paragraph 5 determines that the judge should consider any previous convictions for the same fact or administrative penalties imposed on the offender.
By establishing objective guidelines for valuating nonpecuniary damage, the reform of the Civil Code seeks to provide greater legal certainty, reduce subjectivity in the establishment of compensations, and ensure greater predictability in court awards, in line with the evolution of doctrine and caselaw.
Fernanda Regina Negro de Oliveira Maluf, Specialist Partner in the law firm Ernesto Borges, working in strategic and advisory litigation. University Professor. Specialist in Business Law by FGV and in Corporate Law by Insper.
[1] https://www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias-antigas/2018/2018-10-21_06-56_O-metodo-bifasico-para-fixacao-de-indenizacoes-por-dano-moral.aspx
Available in: https://www.jota.info/artigos/o-dano-extrapatrimonial-no-projeto-de-reforma-do-codigo-civil
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
