A teoria da perda de uma chance

Abstract

The loss of a chance is characterized when, by virtue of the conduct of others, disappears the possibility that someone had to gain an advantage or avoid a loss. The aim of the loss-of-achance theory is to prevent the victim from remaining helpless due to the difficulty of proving causation in situations involving random processes. The theory has been applied, for example, in cases of loss of chance of winning sports competitions, of being accepted in a civil service exam, of winning the prize in a lottery, of ascending in the career, of succeeding in a lawsuit, of surviving or healing from illness. The purpose of this paper is to examine the theory, through literature and jurisprudence research, and see if it should be consistently accepted by Brazilian law. It was concluded that the theory has dual legal nature. In cases that use the notion of autonomous damage, the lost chances should be compensated since the Civil Code does not restrict the kinds of damage. In cases that require partial causation, the theory must be applied subsidiary and cautiously due to the risk it represents to the system of civil liability.