Interest groups want to slice up reform of civil code

Many groups prefer delaying the proposal so each theme—family law, inheritance, damages, contracts—can be addressed separately, effectively “slicing” the reform.

Drafted by a panel of 38 jurists convened in August 2023 at the request of former Senate President Rodrigo Pacheco, the commission proposes changes to more than 1,200 of the Code’s 2,046 articles, last overhauled in 2002. The draft also introduces a new chapter on digital assets, covering cryptocurrencies and image collections on social media.

Several proposed family law updates will affect inheritance divisions. The definition of marriage would shift from “between a man and a woman” to “between two people,” to explicitly recognize same-sex unions. Corporate liability changes—like the introduction of “pedagogical damages”—could significantly impact business finances.

Under Article 944-A, paragraph 3, judges could impose fines alongside moral damages in cases of serious wrongdoing or repeated misconduct, “in order to prevent recurrence,” effectively turning compensation into a punitive deterrent.

The Industrial Federation of Minas Gerais (FIEMG), along with other civil society organizations, is spearheading a national effort to involve the productive sector in discussions around the bill. Paulo Ribeiro, FIEMG’s integrity and governance advisor, warns that the proposed changes could push companies into unforeseen indemnity obligations, since liability would hinge simply on whether damage occurred—not on fault. “Any lawsuit could put a small enterprise under,” he says.

Mr. Ribeiro also criticizes the expanded role of the judiciary under proposals tying contracts to social function, arguing courts could reinterpret virtually any agreement, and the judiciary could become overburdened.

In response, FIEMG plans to launch an Observatory of the Reform by month’s end—cross‑sector thematic groups to monitor the bill’s progress and propose alternatives.

Twenty legal organizations signed a letter urging the bill to pass through all congressional committees with amendment hearings, per Senate rules. They argue the bill implicitly demanded approval before year‑end when filed.

Diogo Leonardo Machado de Melo, a law professor and president of the São Paulo Lawyers Institute (IASP), part of the movement pushing for the reform, notes the bill includes structural changes never before debated—like extrajudicial DNA-based paternity recognition. “That needs judicial oversight, because being added as a parent affects insurance, school registration, and more,” he says. Mr. Melo also criticized the proposal to allow judges to impose pedagogical damages. “Granting magistrates the authority to set punitive damages deviates entirely from the current objective standard established in Article 402 [losses and damages],” the professor said. Regarding the chapter on digital assets, Mr. Melo raised concerns about possible legal overlap. “Won’t the ongoing discussions at the Federal Supreme Court over the Civil Rights Framework for the Internet affect this?”

He further noted that the French Civil Code, known as the Napoleonic Code, was enacted in 1804 and underwent a reform in 2015 that modified fewer than 300 provisions—primarily focused on the law of obligations and contractual practices.

Rodrigo da Cunha Pereira, president of the Brazilian Institute of Family Law (IBDFAM), which supports the proposal and took part in drafting the text, recalled that the current Civil Code spent 20 years in Congress before being enacted, and by then, was already outdated. “Of course, that doesn’t mean approval should happen overnight. Debate will certainly take years as the bill progresses through the many committees every PL must go through,” he said.

According to Mr. Pereira, an IBDFAM committee will monitor the bill’s progress and submit proposals to improve the draft. “In a democratic society, this is standard: a committee of legal experts makes a proposal knowing it will be modified,” he said.

Mr. Pereira noted that many of IBDFAM’s proposals were considered too bold and didn’t make it into the preliminary draft. “In the section on marriage, for example, we had suggested the phrase ‘union between people’ instead of ‘between two people’ to include polyamorous relationships,” he said.

Flavio Tartuce, the bill’s rapporteur, emphasizes there is no urgency in its advancement. “It must pass through thematic committees and will take at least two years. There’s no rush,” he says. He adds that all entities had been notified to participate in earlier public hearings but didn’t contribute.

Mr. Tartuce also rejects claims that the social‑function clause would harm commerce, noting the current Code already includes this in Article 2035’s sole paragraph. He argues new indemnity rules are grounded in Superior Court of Justice precedent (REsp 1.152.541), and argues that “today in Brazil, it’s cheaper to breach a contract because moral‑damages are low.”

“We’d welcome anyone proposing to shelve or sabotage the bill to join the debate and refine it,” says Mr. Tartuce. “That’s what a democratic society expects.”

*By Laura Ignacio — São Paulo

Source: Valor International

https://valorinternational.globo.com/