Intensive Course On the Introduction to the Law of the United States

Civil Liability VS Tort Law

In Portugal, as in all of Civil Law System, we have the Law and a Civil Code
telling us how a case must be decided. Of course we also have a similar precedent rule
based on Legal Security and prohibition of surprise decisions meaning that judicial
decisions may not contradict decisions ruled by superior courts on similar cases (article
5 of our Civil Procedure Code (CPC).
In Portugal, Civil Liability is based on Roman Lex Aquiliana and on contrary to
Germanys article 823 BGB, its not limited to absolute rights (erga omnes) and theres
no need to a relation between agent and contractual plaintiff as the one who suffered a
lesion as the result of the violation of a contract.
For activate the mechanism of Civil Liability from the article 483/1 of our Civil
Code (CC) five requirements are necessary:
Voluntary act that supposes that the agent acted voluntarily in committing the
referred act that caused the damage.
Illegality as in an act that violated a right protected by the civil law and/or the
Constitution - or a rule that protects interests like the law that regulates road behavior.
The agent must have guilt in the terms of the article 487 CC. The guilt divides
in Intent and Negligence.
The intent in the terms of the article 14 of the Penal Code and 494 CC
subdivides in direct where there is an intent of practicing the act that must be the
result in itself; Necessary occurring when theres an intent but the act its not the
primordial end and Eventual when the agent visualizes the result but conforms with the
result of his actions.
Negligence subdivides in two categories. Conscientious when the agent
visualizes with the result but hes not conformed with the result of his action and
Inconscentious negligent/recklessness where the agent does not know about the damage
of his action.
The line between conscientious negligence and eventual intent is very tenuous
for the conformity of the agent with the act that caused the damaged is hard to prove
and theoretically there is a Portuguese Penal Law Professor that defends that it should

exist the institute of gross negligence that should incorporate both categories because
the theory of the conformation its very hard to apply.
If the agent acts with only negligence, there is a diminishment of the obligation
to indemnify.
There must be a damage cause by the agents act. For the existence of the
damage to happen, there is the need to prove that the act has caused some loss. And
finally a casual connection between the act and the damage according to article 563
CC.
This casual connection is shown by proving the existence e relation between the
act and de damage.
Without one of these requirements theres no place to invoke civil liability. And
of course, there must be done by a known agent, you cannot sue an unknown person
invoking this institute.
These are the basic requirements of civil liability as an institute that pursues
indemnity. The preferable way in the terms of our CC is natural restoration of the
damage in the light of the article 566/1 CC, but if not possible or too expensive for the
agent the indemnity will be paid in money or in the form of a rent if the damages are
continued.
The litigation and decision is based on the facts and the written law the Civil
Code that sends the judge to interpret the law based on its letter and meaning/ function
(the ratio legis) and gives us the answer and the way to adapt it to the specific case
accordingly also with the law of civil procedure.
In the Common Law system there the Tort Law that may be defined as
A body of rights, obligations, and remedies that is applied by courts in civil proceedings
to provide relief for persons who have suffered harm from the wrongful acts of others. T
he person who sustains injury or suffers pecuniary damage as the result of tortious
conduct is known as the plaintiff, and the person who is responsible for inflicting the inj
ury and incursliability for the damage is known as the defendant or tortfeasor1.
The Tort Law (liability) may be applied in the court of law considering situations
based on fault, intention, negligence or based on no fault where there is strict liability.

1http://legal-dictionary.thefreedictionary.com/Tort+Law

Torts are civil misconducts recognized by law as grounds for a lawsuit. These
misconducts result in an injury or harm constituting the basis for a claim by the injured
party. While some torts are also crimes punishable with prison time, the primary goal of
tort law is to provide relief and to indemnify for the damages incurred and deter others
from committing the same harms. The injured person may sue for an injunction to
prevent the continuation of the tortious conduct or for monetary damages that are
considered the damage like in the Portuguese civil liability.
Among the types of damages the injured party may recover are: loss of earnings
capacity such as ending profits alike the situations that may also be claimed in the
Portuguese system, pain and suffering, and reasonable medical expenses. They include
both present and future expected losses of profit.
There are specific torts including assault that translates into the action of trying
to hurt someone with intent , battery, negligence, products liability, trespass,
and intentional infliction of emotional distress.
Torts fall into three general categories: intentional torts (intentionally hitting a
person); negligent torts (causing an accident by failing to obey traffic rules); and strict
liability torts (liability for making and selling defective products). Intentional torts are
those wrong misconducts which the defendant knew or should have known would occur
through their actions or inactions. Negligent torts occur when the defendant's actions
were unreasonably unsafe not respecting the law or not being careful enough throughout
his conduct. Strict liability wrongs are established when a particular action causes
damage.
There are also separate areas of tort law including defamation, invasion of
privacy, and economic torts.
Tort law is state law created through judges (common law) and by legislatures
(statutory law). Many judges and states utilize the Restatement of Torts as a guide. The
Restatement is a publication prepared by the American Law Institute whose aim is to
present an orderly statement of the general law of the United States.
Now, Im going to brief a national case and try to discuss how it would be the
decision in the USA.
In a decision from December 9th, 2008 of the Supreme Court of Justice (STJ
standing for Supremo Tribunal de Justia), the latest source to resource a civil case,

relating to a case Civil Liability there was decided a compensation of 20.000 for a
good name and honor offenses. Moral damages are also compensable.
The defendant was protesting at the front of a court about a decision of a judge
therefore protesting in the plaintiffs workplace announcing to be in a hunger strike
and he called journalists to give some statements. The problem is that the defendant
offended the judges good name and honor by over criticizing his decision and telling
the media that the judge was a conflicting arrogant dominating person.
Our jurisprudence has been giving some guidelines for the judges to decide on
equity on the compensation on not patrimonial damages proportionality, the need to
unify criteria e recognition of the sanctionatory aspect of this type of compensations.
The idea of proportionality assumes that the severe damages should have higher
compensations e vice-versa, as the legal protection should be more restrict in cases as
body lesions that cause life long suffering, but not forgetting that these kind of offenses
widely exposed trough mass media may justify the value that was attributed to the
plaintiff as a compensation for infringing the right to good author's name and reputation,
in view of the position he holds and the high sense of ethics and accountability
requirements associated with it, so incurred liability is appropriate to set the
compensation of the damage in question amount of 20,000.
In the USA, Defamation can be seen as Any statement, whether written or oral,
that injures a third party's reputation. () The tort of defamation includes
both libel and slander.
To establish a prima facie case of defamation, four elements are generally
required: a false statement purporting to be fact concerning another person or entity;
publication or communication of that statement to a third person; fault on the part of the
person making the statement amounting to intent or at least negligence; and some harm
caused to the person or entity who is the subject of the statement.2
Libel is a written or published defamatory statement, while slander is defamation
that is spoken by the defendant.

2http://www.law.cornell.edu/supremecourt/text/509/259

In the US as in Portugal there is a protection to free press as a constitutional

right. In the civil law it has to be considered a debate between free press and right to
privacy and personal honor and good name. Theres a conflict of constitutional rights to
be well judged. Fortunately the ordinary law, art. 334 Civil Code, and the Constitution
solve the question by limiting other rights when personality rights are at stake, therefore
human dignity wins as a stronger right.
Still, there is the need in America to look at 1st amendment and look at the
particular situation. In civil law the law tries to be clear protecting peoples dignity
above all except if what the press says is true trough the principle of exceptio veritas
(exception of truth) but still cannot be said in a abusive way like big letters on the front
page. In the US the situation described above would be classified as slander mixed with
libel. I think that even evoking the 1st amendment, the case judged as it was in Portugal
should as well be judged like this in the US for the amendment and the law cannot
protect those who harm others and give them immunity specially when there is a lie and
penal protection for those who see their name in the dirt.
But in the Civil law system theres a catch, all the court actions are regulated
by the Civil Procedure Code that may define what can and cannot brought to court. The
article 186 is strict in its number 1 that defines that the whole process will be null if the
subject of the process is unintelligible like the following case wouldnt be admitted in
court in Portugal or at least would be dismissed making the plaintiff pay the process
fees like the Stella Awards winners. Take this for example: Christopher Roller of
Burnsville, Minn. Roller is mystified by professional magicians, so he sued David
Blaine and David Copperfield to demand they reveal their secrets to him -- or else pay
him 10 percent of their lifelong earnings, which he figures amounts to $50 million for
Copperfield and $2 million for Blaine. The basis for his suit: Roller claims that the
magicians defy the laws of physics, and thus must be using "godly powers" - and
since Roller is god (according to him), they're "somehow" stealing that power from
him.3
Insummary,bothCommonlawsystemandCivillawsystemwanttoprotect
humandignityandrightsandmakejusticealwaysobeyingthelawandthesuperior
courtsdecisionsnotalwaysbutmostoftimes.
3http://www.stellaawards.com/2005.html

I hereby certify that I have made this work independently and without outsider help
and did not use other bibliographical resources than the ones referred in the paper.

Bibliography:
Leito, Lus Manuel Menezes de. (2010) Direito das Obrigaes, 9th Edition
Cordeiro, Antnio Menezes. (2010) Tratado de Direito Civil VIII
http://legal-dictionary.thefreedictionary.com/Tort+Law
http://lawschool.westlaw.com/
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/5e3b30abf0492b5380
257d6a00526807?OpenDocument
http://www.stellaawards.com/