The loss of chance on the superior court of justice’s jurisprudence – the (mis)directions of a theoric comprehension

Abstract

The article aims at demonstrating that, with the modification of the concept of wrongful damage in order to embrace not only the violation of subjective rights but also the injury caused to legitimate interests, the recognition of a new damage category, called the loss of chance, became possible. From this assumption, based on national and foreign doctrines (mainly French and Italian), it analyses the Brazilian Superior Court of Justice’s decisions concerning this issue that were the result of a search realized by the words “loss” and “chance”. For the purposes of the study, all decisions that the central problem was not directly concerned to the theory of loss of chance or it were related to medical liability have been eliminated from the sample. Because of that, the analysis is restricted to the decisions in which the classical loss of chance theory has been applied, meaning the cases in which there is a frustration of an aleatory process at the end of which there would be an advantage or the possibility to avoid a loss, but noboby will ever be capable of knowing the final result. This approach highlights, thus, how has been the theory acceptation in the Brazilian Superior Court of Justice and punctuates the successes and misconceptions of the comprehension and characterization of this new type of damage. Furthermore, it also demonstrates there is no concurrency in the Superior Court of Justice, whose decisions sometimes do not admit the compensation for the loss of chance; every now and then, although they recognize the loss of chance as a new type of damage, they characterize it as consequential damages or lost profits or, instead, only as aggregating the value of moral damage.