THE DUTY OF THE SUCCUMBING PARTY TO INDEMNIFY THE PARTY HARMED BY THE LOSSES WITH THE LAWSUIT. ALTERNATIVELY, IS IT POSSIBLE TO WIN WITHOUT LOSING?

Abstract

Objective: This is a research aimed at analyzing the controversy existing in the Brazilian judicial system regarding the reparation of losses and damages suffered by the party that wins a lawsuit, due to the hiring of a legal professional to act in court in its favor. The research outlined as a problem to be answered whether it is possible to conceive, of lege lata, a civil liability system so that the party succumbing to a lawsuit indemnifies the winning party for the losses resulting from that action. Methodology: Adopting a qualitative and quantitative method, the research verified the judgments of the Superior Court of Justice regarding the possibility of restoring contractual fees to the winner of the claim, as well as the grounds used for such decisions. Results: It found that the majority understanding in the Superior Court of Justice’s Sections on the issue does not align with the interpretations given to articles 389, 395 and 404 of the Civil Code, which include contractual fees as part of the losses and damages subject to reimbursement in favor the victim of the offense. Contributions: The literature review methodology revealed that although there is sufficient normative and theoretical substrate recognizing the possibility, the courts do not apply it in a peaceful manner. The research, then, elaborates a propositional and inspiring thesis that justifies the duty of the succumbing party to indemnify the winning party for the losses that it had with the hiring of a lawyer to be in court.

Keywords

• honorários contratuais
• sucumbência
• abuso de direito de ação
• perdas e danos