The Regulatory Role of Tort Law: A Further Economics Analysis of Civil Liability and the Molecularization of Jurisdictional Protection in Brazilian Consumer Law

Paulo Franco (Fundação Getulio Vargas (FGV DIREITO RIO))

Abstract

Although harm compensation is one of the possible functions of tort Law, this is not the main role of the civil liability: an indemnity has, as its primary purpose, the purpose to generate incentives or disincentives for potential harmdoers, in order to, due the legal system, estabilish the minimization of the social cost and encourage a greater level of investment in precaution and, with that, a lower probability of occurrence of losses and harms and, therefore, a lower expected damage. To do so, however, indemnities must be understood as the legal garment of economic rationality for generating incentives: the regulatory role of tort Law. Thus, the purpose of this paper is to bring Law and Economics closer to civil liability, thinking about how the Economic Analysis of Law’ tools (and, more specifically, the Hand Formula) can help Brazilian Courts to improve the way in which indemnities are calculated, which will be concatenated based on the jurisprudence of consumer Law and the perspective of collective actions arising from consumer relations, or, in other words, from the molecularization of the consumer's judicial protection.

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