Novos contornos da responsabilidade civil da pessoa com deficiência após a lei brasileira de inclusão

Abstract

The present study is proposed to investigate the assumptions on how the civil liability of persons with disabilities is configurated in the light of the modifications brought by the "Estatuto da Pessoa com Deficiência" (EPD), mainly concerning the (in)capacities regime, which has instituted the presumption of full capacity of said persons in the Brazilian legal system. It is addressed the concepts of capacity and autonomy and their relation with the civil liability, understood as a reaffirmation of the first two. It critically confronts doctrinal positions that equate people with psychic or intellectual disabilities to incapable subjects as to apply to them the more beneficial regime of equitable civil liability provided by the article 928, sole paragraph, of the Civil Code, and it is sustained the protection of the existential minimum in order to make use of the equitable reduction of the civil liability reparation, however, based on the article 944, sole paragraph, of the Civil Code. It is demonstrated the applicability of such solution to all capable people in patrimonial vulnerability that may, regardless of having disabilities, have their existential minimum compromised by the integral reparation of the victim of the damage. The several forms of disabilities are presented as personal conditions which should reverberate in the gauging and measurement of the existential minimum of those people, according to the individuals specificities in each concrete case.