The Professional Negligence Law Review: Brazil

Introduction

i Legal framework

In Brazil, professional civil liability is characterised as contractual, once it arises from the violation of a duty set out in a particular contract that governs the rendering of professional services. In other words, it is the obligation to indemnify the damage caused during the exercise of an independent or subordinate profession as a result of a professional error.

In general, legal regulation is provided by the Civil Code, the Consumer Defence Code and administrative rules governing specific professions, which are subject to special rules in view of their inherent risk, as will be addressed in Section II.

This is because, in some cases, a professional error can cause serious harm and, therefore, certain requirements, such as attainment of a university degree and membership of the competent professional association, must be observed for the exercise of the profession. This is the case, for example, for lawyers, doctors and engineers. However, regardless of the fulfilment of these requirements, the professional who is negligent and causes damage will be required to indemnify the injured party.2

In this sense, Article 14, Section 4 of the Consumer Defence Code establishes that the liability of the freelancer3 will be subjective or fault-based (i.e., the fault must be demonstrated, along with the professional error, the damage and the causal link).

However, not all cases of professional liability will be governed by the traditional regime of subjective liability, either because not all will be considered consumer relationships or because the nature of the obligation – whether of means or result – will be decisive for the definition of the nature of the civil liability itself.

In general, under an obligation of means the professional is obliged to undertake technique and diligence in his or her practice to obtain the required result, but without guaranteeing this result at the end.

As a rule, the obligations of a doctor and a lawyer are obligations of means, as they do not assure a particular outcome, such as healing a patient or being successful in a lawsuit. Nonetheless, these professionals must act diligently and in compliance with the available and adequate techniques, otherwise they will be responsible for any damage caused by negligent performance.

Consequently, the fault-based regime applies to obligations of means as the professional will be liable when executing professional obligations with negligence, recklessness or malpractice – in other words, fault.

On the other hand, under obligations of result the professional is not only required to act diligently, but also to obtain the expected result. Therefore, non-achievement of the result will entail liability for any consequential damages.

As an example, the work of a contractor is an obligation of result because only the completion of the work according to the agreed terms and conditions will discharge the contractual obligations. Once these differences are understood, a question arises as to defining in practice whether the professional activity is classified as an obligation of means or of result.

According to doctrine, obligations of means occur in cases where the contract involves an inherent risk and, therefore, the professional cannot assure the result in view of factors beyond his or her control. Vanessa Donato de Araujo explains:

where there is risk, the obligation is of means, because, strictly speaking, the debtor cannot compromise to obtain a result that can only be eventually achieved. In cases where the achievement of a result is not random and only depends on his performance, it can be assumed that the debtor compromised to fulfil that particular outcome.4

Once the nature of the obligation is defined, and given that an obligation of result does not require evidence of fault, an important distinction must be made as to whether the professional liability will be strict liability. The answer is negative. This is because fault is never discussed in strict liability, nor as a matter of defence. It is up to the creditor to simply demonstrate the unlawful act, the damage and the causal link.

In situations where civil liability involves obligations of result, the creditor does not have to prove the fault either. However, the professional will be able to argue the lack of fault as a defence to demonstrate that he or she undertook all the necessary technique and diligence to obtain the result. This means that civil liability with respect to obligation of result will be subjective, but with a presumption of fault.5

Therefore, neither the strict liability nor the traditional fault-based liability applies to obligations of result. It differs from the fault-based liability applicable to obligations of means, where the burden of proof regarding the fault lies with the creditor, who must demonstrate not only the damage and the causal link, but also the negligence of the professional.

Aside from the burden of proof, there are other defences, such as acts of God and force majeure, exclusive fault of the victim and third-party acts.

In addition, it is also possible to apply contractual clauses limiting or exonerating parties from the obligation to indemnify. However, such clauses, especially clauses fully releasing parties from the obligation to indemnify, are likely to be deemed invalid in cases of liability for gross negligence or wilful acts, or, for example, when inserted in adhesion contracts or consumer agreements.

So far, we have addressed the responsibility of the professional who directly causes the damage as a result of his or her own act. However, there are situations where the professional is an employee or representative of a certain company, giving rise to civil liability through the act of a third party. This scenario is covered by Article 932(II), of the Brazilian Civil Code, which establishes that 'the employers or principals are also responsible for civil reparation for their employees, servants and agents in the exercise of their work, or in their name'. This responsibility does not depend on the employer being at fault, and the employer will have the right of recovery against the employee to be reimbursed for payment made on the employee's behalf, as provided by Articles 933 and 934 respectively.

Thus, liability for a third party is strict, once the employer is liable 'for the actions of its employees because it creates the risk of the damage that the employee may cause, by hiring him to develop activity in its benefit'.6 However, the employer will only respond if the fault of the employee is demonstrated in accordance with the nature of the obligation, whether of means or of result.

Once the responsibility of the employee is established, he or she will be jointly liable with the employer, in accordance with Article 942 of the Brazilian Civil Code. In this context, the defences available to the employer are limited, such as acts of God or force majeure, the victim's exclusive fault, and execution of the act by the employee outside the exercise of professional duties.7

ii Limitation and prescription

In general, where a consumer contract is operative, the limitation period for the client to file a lawsuit against the professional is five years, starting from the knowledge of the damage and of its agent, in accordance with Article 27 of the Consumer Defence Code.8

However, it is important to emphasise that the limitation period may change depending on the type of profession and whether it is defined as a consumer relationship.

For instance, the Superior Court of Justice understands that, in the medical field 'the Consumer Defence Code is applied to medical services, including the five-year limitation period provided in Article 27 of the Consumer Defence Code'.9

However, the position is different regarding the civil liability of lawyers. According to the Superior Court of Justice, this professional relationship is not regulated by the Consumer Defence Code and, therefore, the five-year period does not apply. This is in fact deemed to be a contractual civil relationship, to which the general term of 10 years applies, pursuant to Article 205 of the Brazilian Civil Code.10

The 10-year term also applies to the constructor's liability for defects in the construction work. According to Article 618 of the Brazilian Civil Code, the builder will only be held liable if the defect is verified within five years of its delivery and, thereafter, the 10-year limitation period begins to run.11

iii Dispute fora and resolution

The state courts are competent to judge the negligence lawsuits, which will follow the procedural rules of the Brazilian Code of Civil Procedure.

As a rule, lawsuits for damages must be filed at the place of the defendant's domicile, as provided in Article 46 of the Brazilian Code of Civil Procedure. However, special rules may apply, such as in the case of lawsuits against professionals, which can be filed at the place of the domicile of the plaintiff or defendant, according to Article 101(I), of the Consumer Defence Code.

In general, the proceeding is public and based on conciliation as a form of consensual solution. The parties must bear the cost of filing a claim and certain appeals, which vary according to each state. In addition, the losing party will be sentenced to pay the costs incurred by the other party, as well as the legal fees for the lawyer of the winning party, which will be set by the judge and may vary between 10 per cent and 20 per cent of the value of the award or the economic benefit obtained.

An arbitration procedure, regulated by Law No. 9307/1996, is also an option. Despite its advantages, such as confidentiality, arbitrators' specialist experience and speed, there is no recourse to appeal and the costs are significant, therefore, this option is only commonly adopted in cases strategically.

Finally, there is the possibility of entering the lawsuit before the Special Civil Courts, offices of the judiciary who assess cases of a lesser degree of complexity and of a value up to 40 times the Brazilian minimum wage (currently 414,000 reais). The parties are exempt from the payment of costs and the lawsuit must be filed at the place of the defendant's domicile or, if it is a lawsuit for damages, the author's domicile or the place where the act took place, according to Article 4 of Law No. 9099/95.

iv Remedies and loss

A professional error can cause three types of damage: property damage, pain and suffering, and disfiguring damage. In Brazil, there is no concept of 'punitive damages' as in US law.

According to the general rule of Article 944 of the Brazilian Civil Code, 'the indemnity is measured by the extent of the damage'. The principle of full compensation is applicable, therefore, the matter of fault does not bear on the amount of compensation, except in situations where there is 'excessive disparity between the seriousness of the fault and the damage', as provided in Article 944.

Specifically regarding obligations of means, both doctrine and case law have been applying the theory of loss of chance to quantify compensation. This is because it is impossible to guarantee that had the professional acted diligently the result would certainly have been reached.

Thus, the compensation is proportionally reduced in relation to the serious and real probability that the client would have obtained the anticipated result if the professional had acted diligently. According to Sérgio Savi, the loss of chance is only established when it represents a probability higher than 50 per cent. Nonetheless, 'the indemnification of the lost chance will always be less than the value of the expected useful result'.12

In this context, the Superior Court of Justice has ruled that 'in civil liability for the loss of a chance, the amount of the compensation does not correspond to the final loss, and must be obtained by valuing the lost chance as an independent interest'.13

Specific professions

i Lawyers

The activity of advocacy is regulated by Law No. 8906/94 and by Resolution No. 02/2015 of the Brazilian Bar Association (OAB), which approved the OAB Code of Ethics and Discipline.

While the Code of Ethics establishes the principles that guide the conduct of lawyers, Law No. 8906/94 provides for the practice of advocacy and the rights of the lawyer, the requirements for registration, disciplinary infractions and sanctions, among other things.

As to liability, Article 32 of Law No. 8906/94 states that 'the lawyer is responsible for actions committed with fraud or negligence in the exercise of the profession' (i.e., the subjective liability regime applies).

There is an interesting question regarding liability for advice given by means of legal opinions. Some authors believe that the lawyer would only be liable in cases of fraud, while there is an opposite view that the demonstration of fault is the only requirement.14 In this regard, Article 32 states that 'the lawyer is responsible for actions committed with fraud or negligence in the exercise of the profession'.

In addition, Article 32, sole paragraph, provides for a singular situation of liability in cases of reckless claims, where 'the lawyer is jointly liable with his client, if they have colluded to harm the opposite party, which will be verified in the specific lawsuit'.

In summary, the doctrine holds that the lawyer is liable for errors of fact as well as for errors of law,15 but, in the latter case, only when they are serious.16

Therefore, while it would be necessary to verify the lawyer's performance in the particular case at hand, the following actions may, in principle, be indicative of the lawyer's liability: filing an unfeasible suit, lacking knowledge of the law or jurisprudence, failing to submit a timely defence or appeal, and failing to pay or making incorrect payment of court fees.17

ii Medical practitioners

The medical profession is governed by Resolution No. 2217/2018 of the Federal Council of Medicine, which approved the Medical Code of Ethics.

Article 1 of the Resolution establishes that the doctor is prohibited from 'causing harm to the patient, by action or omission considered as malpractice, recklessness or negligence'. Article 1 adds that 'medical liability is always personal and cannot be presumed'. In other words, it confirms the medical professional's subjective responsibility derived from the obligation of means.

Also, Article 22 states that the physician must obtain consent from the patient or the patient's legal representative after explaining and clarifying the procedure to be performed, except in cases of imminent risk of death. Even if the consent is obtained, the doctor shall assume responsibility for the professional act, in accordance with Article 4. In this sense, the Superior Court of Justice has ruled that fault liability applies in cases of breach of the duty of information as it compromises the consent of the patient, and that the Consumer Defence Code applies, which means that the judge may decide that the burden of proof lies with the doctor and not the patient.18 However, doctrine holds that certain activities may constitute an obligation of result, such as 'plastic surgery and technical procedures of laboratory examination and others, such as radiographs, tomographies, magnetic resonances'.19 The position of the Superior Court of Justice is that cosmetic surgery is an obligation of result, while restorative surgery is an obligation of means.20

Regarding the discussion about the liability of hospitals, the Superior Court of Justice has decided that the fault regime applies. Therefore, it will depend on the evidence of the physician's fault. The strict regime will only apply if the services provided by the hospital are defective, such as those related to the hospitalisation and feeding of the patient, facilities, equipment and auxiliary services, nursing and medical exams.21 The responsibility for anaesthesia has also been discussed. For Sílvio Venosa, it is an obligation of means.22 The Superior Court of Justice ruled that it only falls 'to the joint liability of the head of the medical team when the person who caused the damage is part of the team in a subordinate position. Thus, in the case of an anaesthesiologist, who is part of the team but acts as an autonomous professional, following techniques specific to his or her medical speciality, he or she must be individually held responsible for the event'.23

The same understanding applies to dentists, whose activity is regulated by Law No. 5081/66. The Superior Court of Justice has also decided that the dental surgeon has an obligation of means.24 However, in the case of cosmetic treatment or preventive dentistry, the obligation is one of result.25

Finally, regarding the quantification of damages, the Brazilian Civil Code expressly establishes in Article 951 (through reference to Articles 948–950) that the professional who causes the death of the patient, or any injury or disability, shall make the following reparations:

Article 948
In the event of death, the indemnification consists in, without excluding other reparations:
I – payment of expenses for the treatment of the victim, his funeral and the mourning of the family;
II – the supply of food to the people to whom the victim owed them, taking into account the likely duration of the victim's life.
Article 949
In the event of injury or other health offence, the offender shall indemnify the treatment expenses and lost profits until the end of the convalescence, in addition to other losses.
Article 950
In the event of a defect preventing the victim from exercising his or her profession or decreasing his or her ability to work, the compensation, in addition to treatment expenses and loss of profits until the end of the convalescence, shall include a pension corresponding to the importance of the work for which the victim is incapacitated, or the depreciation suffered.

Regarding the covid-19 pandemic, Law No. 13989/2020 was issued on 15 April 2020, allowing online medical assistance during the pandemic. According to the Law, the patient must be informed about any limitation arising from the use of telemedicine in view of the impossibility of conducting a physical exam. In addition, Article 5 establishes that telemedicine must follow all legal and ethical rules that apply to face-to-face consultations. Thus, the comments above regarding the liability regime of medical practitioners also apply where a consultation is carried out through the use of telemedicine.

Finally, Bill No. 1998/2020 is currently under discussion by Congress and its purpose is to regulate the use of telemedicine when the pandemic is over. According to the Bill, it is up to the patient or the patient's legal representative to decide whether to use telemedicine or have a face-to-face consultation, and in both cases the doctor remains professionally liable for any damage. The Bill also provides that patients' personal data must be protected, in accordance with Law No. 13709/2018, the Brazilian General Data Protection Law (LGPD).

iii Banking and finance professionals

According to Article 3, Section 2 of the Consumer Defence Code, banking activity is governed by the Code, regardless of the credit operation practised, as stated in Superior Court of Justice Binding Precedent No. 297.

The banks' liability is strict, according to Article 14 of the Consumer Defence Code, which establishes the general rule that 'the service provider responds, regardless of the existence of fault, for the repair of damages caused to consumers by defects in the rendering of services, as well as by insufficient or inadequate information on their use and risks'.

The liability of banking institutions can only be waived if there is proof of non-existence of a defect in the service or if the consumer or third party's exclusive fault is established in accordance with Section 3 of Article 14.

The Superior Court of Justice has also issued Binding Precedent No. 479, which states that 'financial institutions are strictly liable for damage caused by fortuitous internal fraud and offences committed by third parties in banking transactions'. The Superior Court of Justice reaffirmed this understanding when judging the case in REsp 1,837,461, on 25 August 2020.

iv Computer and information technology professionals

There is no specific regulation of computer and information technology professions, nor any applicable Professional Council.

The purpose of the ongoing Bills Nos. 5101/2016 and 3065/2015 is to regulate the profession of systems analyst and others related to it. These Bills aim to regulate the technical and training requirements necessary for the exercise of the profession and the creation of the Federal Informatics Council and regional Computer Science Councils, agencies that would be responsible for supervising the exercise of the professions. However, there is no provision regarding the civil liability of such professionals.

Therefore, the general liability regime based on the assessment of fault applies to computer and information technology professionals.

v Real property surveyors

There is no professional category of real property surveyors in Brazil. Engineers and architects, whose responsibility is addressed in Section II.vi, generally carry out this kind of work.

vi Construction professionals

Engineers, architects and contractors who assign a construction agreement are required to provide results, as the work must be delivered in accordance with the contracted project and the agreed term.

The fulfilment of the obligation will be discharged not only with the completion of the work, but also with the achievement of the purpose for which the professional was hired. Therefore, the professional will only be exempted from liability when there is a fortuitous event, force majeure, exclusive fault of the victim or third-party act.26

The contractor's liability is different from that of the designer. If design defects arise from a design error and cannot be detected by the contractor, the designer will be liable. However, if the irregularities could have been identified during the work by the contractor – appointed by the designer and working under the designer's supervision – the responsibility shall be joint and several.27

In this context, Article 622 of the Brazilian Civil Code establishes that 'if the execution of the work is entrusted to third parties, the author's responsibility for said project shall be limited to damages resulting from defects set out in Article 618, if the author is not in charge of leading or supervising the project'.

Finally, Article 618 of the Brazilian Civil Code establishes that liability shall be objective in building contracts or for other significant constructions where the material and execution provider shall be liable for the soundness and safety of the work, and for the materials and the soil, for the irreducible period of five years. In these cases, the provider will respond for a period of five years, with the owner of the project having 180 days to file a lawsuit, pursuant to Article 618.

In the past year, during the coronavirus pandemic, the execution of engineering works contracts has been severely impacted as the adoption of social distancing measures affected deadlines for service completion. Article 393 of the Civil Code provides that, in cases of act of God or force majeure, the parties are exempted from liability for breach of contract and the enforceability of obligations is suspended or the contract must be terminated, depending on whether the impediment is temporary or definitive. Note, however, that in the context of the pandemic the application of Article 393 should be discussed in each specific case to verify whether the breach of the contract was in fact caused by the pandemic or if other causes were determinant.

vii Accountants and auditors

The profession of accountant is regulated by Decree-Law No. 9295/1946, which requires professionals to prove their attainment of a bachelor's degree in accounting sciences, approval in the Sufficiency Examination and registration with a regional accounting council.

The above-mentioned Decree-Law also created the Federal Accounting Council and the regional councils – administrative agencies responsible for monitoring the exercise of the accounting profession.

Law No. 6385/1976, which regulates the securities market in Brazil, establishes in Article 26 that 'only accounting firms or independent accounting auditors registered at the Brazilian Securities Commission may audit the financial statements of publicly held companies and of institutions, companies or corporations that make up the system of distribution and intermediation of securities, for the effects of this Law'.

Furthermore, Paragraph 2 of Article 26 provides that these professionals 'shall be subject to civil liability for any losses caused to third parties as a result of fraud or fault in the exercise of the functions provided for in this article', thereby adopting the subjective liability regime.

In this regard, the Superior Court of Justice has decided that in cases of audit service the subjective regime applies as long as there is evidence of fault, damage and causal link with the opinion or audit report issued.28

viii Insurance professionals

On 11 November 2019, the President of Brazil issued Executive Order No. 905, which revoked Law No. 4594/1964 and partially revoked Decree Law No. 73/1966, which used to regulate insurance brokerage. The decision to deregulate the insurance profession in Brazil was taken to improve efficiency in public management and concentrate efforts on activities requiring specific regulation.

However, Executive Order No. 905 was provisional and should have been ratified by Congress within 120 days to become final. This deadline expired on 20 April 2020, but the President had revoked the Executive Order before this date, as Congress would not have had the opportunity to vote on it. This meant that Law No. 4594/1964 and Decree Law No. 73/1966 became effective again, and insurance brokerage continues to be regulated. Notably, the President still has the option of issuing a new executive order and the profession could eventually be deregulated.

Thus, in the current scenario insurance brokers are regulated by Law No. 4594/1964, Decree-Law No. 73/1966 and the resolutions and rules issued by the National Council of Private Insurance and the Superintendence of Private Insurance (SUSEP).

According to Article 1 of Law No. 4594/1964, the insurance broker, a legal person and entity, 'is the intermediary legally authorised to get customers and promote insurance contracts, admitted by the legislation in force, between insurance companies and individuals or legal entities, of public or private law'. The exercise of the profession depends on obtaining the qualification certificate, issued by SUSEP, under the terms of Article 123 of Decree-Law No. 73/1966.

Civil liability of insurance brokers is regulated by Article 126 of Decree-Law No. 73/66, which applies the fault liability regime. Article 127 also establishes the professional responsibility of the broker for non-compliance with laws, regulations and resolutions in force.

Furthermore, Article 20 of Law No. 4594/64 specifically states that 'the broker shall be professionally and civilly liable for inaccurate declarations contained in proposals signed by him, regardless of the sanctions that may be applicable to others responsible for the infraction'.

On the other hand, the actuarial profession is regulated by Decree-Law No. 806/1969 and Decree No. 66408/1970, which define the requirements for the exercise of the profession and the activities of the professional actuary. As there is no specific liability regime, the applicable general regime is provided by both the Civil Code and, where relevant, the Consumer Defence Code.

Year in review

i Legislative changes

Brazil has a civil law legal system therefore its primary source is codified law. Consequently, and considering the complex legislative procedure required to change the law, the legal framework for professional liability does not undergo frequent modification.

Because of the pandemic, Law No. 14010/2020 was issued, suspending the statute of limitations for the period 12 June 2020 to 30 October 2020, among other measures.

A very significant legislative change was the enactment of the LGPD, which is inspired by the European General Data Protection Regulation. The LGPD came into force on 18 September 2020 and, although its provisions are already enforceable, the application of administrative sanctions will only commence from 1 August 2021, pursuant to Law No. 14010/2020. After more than two years of vacatio legis, this Law, which aims to protect individuals' freedom, privacy and personal development by giving them more control of their personal information, is already impacting several sectors and industries that process personal data. Among these, the insurance, reinsurance and brokerage markets will undeniably be affected and will therefore have to adapt to the provisions of the new law.

As to engineering professionals, although no significant legislative changes have been introduced, the sector has been directly impacted by the pandemic, with delays to several programmes of works that were in progress or were due to be concluded.

Finally, the local insurance market is currently undergoing a process of deregulation and the Brazilian insurance authorities have been issuing important rules focusing on transparency, modernisation and free competition in the market; for example, in the past year, these have included new rules on mass insurance29 and large risks insurance.30

ii Relevant case law

Considering that the covid-19 pandemic is still ongoing and the number of related lawsuits is rising, Brazil's superior courts have not adopted a settled position on pandemic-related matters. In view of this, we highlight below one relevant case decided recently by one of the country's state courts.

On 4 April 2021, the Court of Justice of Mato Grosso do Sul ruled on a case,31 dismissing a request for elective (non-urgent) surgery, given both the lack of imminent risk to the patient's life and the current risk of dissemination of the coronavirus in Brazil.

The decision was based on the fact that, although under Article 196 of the Constitution the state is responsible for guaranteeing the citizens' universal and equal access to healthcare, the exceptional situation created by the pandemic requires hospital beds to be allocated in such a manner as to reserve hospital capacity for new patients infected with the virus.

The Court explicitly referred to National Council of Justice Recommendation No. 66/20, which recommends the adoption of measures to guarantee the best results for society during the exceptional period of the pandemic.

Outlook and future developments

The covid-19 outbreak has created a new crisis scenario that is posing numerous challenges and affecting professional relationships. Some categories of professionals are facing greater exposure to liability, especially health professionals and hospitals; for example, in relation to diagnosis errors, hospital bed shortages, wrong treatment and lack of testing, all of which will certainly result in greater exposure to liability. In addition, the aggravated development of the coronavirus crisis in Brazil has resulted in the imposition of remote working for different categories of professionals, which means that professionals in general are being exposed to a variety of risks that may impact the execution of their services and, consequently, increase their exposure to liability; for example, through professionals' use of in-home internet connections to provide services to their clients, whether medical assistance, legal work or accounting consultancy. Moreover, in view of the pandemic situation, new legislation was issued, such as rules on judicial deadlines or the use of telemedicine, which required modifications to the daily working routines of the affected professionals and created new obligations and requirements for them to fulfil.

In this context, professional liability insurance, also known as errors and omissions (E&O) insurance, may assume greater significance as an important instrument in the management and mitigation of professional risk. E&O insurance is commonly retained by professionals such as lawyers and accountants, and by health professionals such as doctors, nurses and dentists, as well as by hospitals and clinics. The purpose of the insurance is to provide financial protection to the insured from failures committed in the exercise of the profession. Its scope is to guarantee the insured the reimbursement of compensation paid to a third party because of the occurrence of failure or a professional error, in addition to the defence costs incurred through claims filed by third parties. Thus, by means of this insurance, the insured's assets will be protected in the event that the insured is found liable to compensate the client for a professional failure.

Therefore, insurance companies may expect an increase in the number of losses resulting from errors committed during the execution of services by professionals in the context of the current crisis. Professional error is precisely the kind of event that falls within the scope of coverage of E&O policies, which in general would not exclude covid-19 from the possible risks covered. The crisis may also raise awareness about the importance of retaining E&O insurance as an instrument to mitigate the risk of liability in an environment of great exposure to risk.

Finally, new rules are expected to be issued in 2021 as a result of ongoing legislative efforts to minimise the negative effects of the pandemic in all areas, including the health sector and the economy in general.

Footnotes

1 Marcia Cicarelli is a senior partner and Camila Affonso Prado and Laura Pelegrini are senior associates at Demarest Advogados.

2 Cavalieri Filho, Sergio. Programa de responsabilidade civil. 7 ed. São Paulo: Atlas, 2007, pp. 358–359.

3 Vaneska Donato de Araujo explains that a freelancer is 'one who works independently, in an autonomous manner, and who exercises his activity with full freedom, choosing the clients he will meet, determining the value of the service rendered, and other conditions of the contract to be entered into with the creditor'. Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, p. 157.

4 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation. Faculdade de Direito da Universidade de São Paulo, 2011, pp. 154–155.

5 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', masters' dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, p. 156.

6 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, p. 164.

7 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, p. 167.

8 Superior Court of Justice, AREsp 1,012,271, Judge Maria Isabel Gallotti, ruling: 18 February 2020.

9 Superior Court of Justice, AREsp 1,732,387, Judge Paulo de Tarso Sanseverino, ruling: 25 February 2021.

10 Superior Court of Justice, REsp 1,639,323, Judge Luis Felipe Salomão, ruling: 2 June 2020.

11 Superior Court of Justice, AgInt AREsp 438,665, Judge Luis Felipe Salmoão, ruling: 24 September 2019.

12 Savi, Sérgio. Responsabilidade civil por perda de uma chance. São Paulo: Atlas, p. 63 and p. 80.

13 Superior Court of Justice, REsp 1,677,083, Judge Ricardo Villas Bôas Cueva, ruling: 14 November 2017.

14 Dias, José de Aguiar. Da responsabilidade civil. 12 ed. Editora Lumen Juris: Rio de Janeiro, 2011, pp. 353–354.

15 Gonçalves, Carlos Roberto. Responsabilidade civil. 9 ed. São Paulo: Saraiva, 2006, p. 393.

16 Dias, José de Aguiar. Da responsabilidade civil. 12 ed. Editora Lumen Juris: Rio de Janeiro, 2011, p. 359.

17 Cavalieri Filho, Sergio. Programa de responsabilidade civil. 7 ed. São Paulo: Atlas, 2007, p. 377. Diniz, Maria Helena. Curso de Direito Civil Brasileiro: Responsabilidade Civil. 21 ed. São Paulo: Saraiva, 2007, pp. 295–298.

18 Superior Court of Justice, AgInt AREsp 1,649,072, Judge Luis Felipe Salomão, ruling: 13 August 2020.

19 Venosa, Sílvio de Salvo. Direito Civil: Responsabilidade Civil. 14 ed. São Paulo: Atlas, 2014, p. 148.

20 Superior Court of Justice, AREsp 1,508,421, Judge Raul Araújo, ruling: 31 August 2020. Superior Court of Justice, AgInt AREsp 1,095,904, Judge Maria Isabel Gallotti, ruling: 22 March 2018.

21 Superior Court of Justice, AREsp 1,593,936, Judge Moura Ribeiro, ruling: 3 February 2020.

22 Venosa, Sílvio de Salvo. Direito Civil: Responsabilidade Civil. 14 ed. São Paulo: Atlas, 2014, p. 168.

23 Superior Court of Justice, REsp 605,435, Judge Nancy Andrighi, p. 2 of Judge Raul Araújo vote, ruling: 14 September 2011.

24 Superior Court of Justice, REsp 1,184,932, Judge Castro Meira, ruling: 13 December 2011.

25 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, pp. 217–218.

26 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, pp. 217–262.

27 Araujo, Vaneska Donato de. 'A responsabilidade civil professional e a reparação de danos', master's dissertation, Faculdade de Direito da Universidade de São Paulo, 2011, pp. 217–272.

28 Superior Court of Justice, REsp 1,281,360, Judge Luis Felipe Salomão, ruling: 21 June 2016.

29 Circular SUSEP No. 621/2021.

30 Resolution CNSP No. 407/2021.

31 Lawsuit No. 2000040-06.2021.8.12.0000.

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