Mariana Pargendler & Judith Martins-Costa, Us et abus de la fonction punitive: dommages-intérêts punitifs et le droit brésilien, 58 Revue internationale de droit comparé (2006) (Fr.).
Abstract: In the recent past, Brazilian courts have steadily embraced the award of punitive damages in tort cases involving non-pecuniary loss. This essay aims to analyze how the reception of punitive damages took place in Brazil by contrasting the elements of this doctrine in the Anglo-American context with the traditional legal framework for the treatment of non-pecuniary damages under Brazilian law. While scrutinizing the intricate paths of the Brazilian jurisprudential developments, the authors show concern about the “decontextualized” and anachronistic application of punitive damages in Brazil. First, the authors compare the concept of peine privée with the use of punitive damages in the common law tradition, thus providing a legal history and comparative law framework to approach the paradoxes and adjustments that the doctrine of punitive damages suffered in Brazil. Although the authors admit that possible uses of punitive civil liability may be viable under Brazilian law, they warn against the dangers of its abuse arising out of the superposition of doctrinal labels and content, which is an enduring difficulty in comparative legal studies.