A responsabilidade civil pelo risco do desenvolvimento no ordenamento jurídico brasileiro: uma análise comparativa à luz da Diretiva Europeia 85/374/CEE

Abstract

Life in society is constantly changing, with the emergence of new technologies at all times. Thus, scientific-technological progress became intrinsic to the idea of ​​social, economic and cultural evolution, and consumption acquired the status of an activity inherent to the human condition, being responsible for a change in thinking that controls, today, the way of living in society across the planet. Therefore, the intervention of law in consumer relations has become essential. Among the legal discussions arising from this scenario, the theory of development risk is based on the risks of a product that cannot be identified, when it is inserted in the market, even considering all the scientific knowledge available at that time, and only become discovered after its use. The discussion about the liability of the supplier for such risks is the subject of intense debate and is expressly provided for in the European Directive 85/374/EEC. In the Brazilian legal system, however, the theme is not addressed expressly by the Consumer Protection Code, nor by the Civil Code, finding different positions in the national doctrine. The Consumer Defense Code established objective liability, as a rule, with a view to greater consumer protection, and brought responsibility for the fact of the product or service and responsibility for the defect of the product or service, distinct from the common civil liability of the consumer. Civil right. Based on this, the legislator created hypotheses that excluded the supplier's liability, but did not expressly mention the risk of development as one of them. For this reason, several theses were developed to support the positions adopted by Brazilian jurists. On the other hand, European Directive 85/374/EEC provides that the producer cannot be held responsible for the defective product, when he proves that the state of scientific and technical knowledge at the time the product was put into circulation did not allow him to detect the existence of the defect . In the Brazilian context, the understanding most adopted by jurisprudence and doctrine is that the risk of development is not a skillful hypothesis to rule out the responsibility of the supplier. At the end of the work, it is concluded that art. 7, paragraph e, of the European Directive, does not have applicability in the Brazilian legal system