In newly published judgment, the third class of the Superior Court welcomed a request for indemnity for extra-transfer damage supported by a baby as a result of contractual noncompliance by a business company, being the theory of loss of a chance the central plea of the Judgment of Lavra of Minister Paulo de Tarso Sanseverino (ANSP 1.291.247 / RJ).

The parents and the child are authors of indemnifying extra-domain damage against a company contracted by those still when the mother was pregnant. Contractor, specializing in gene collection, should have appeared to childbirth of the child to collect the umbilical cord stem cells that would be stored in the laboratory so that, in the event that the child will develop some disease, are used in the pursuit of the healing of this . However, the company's foregoing did not attend to childbirth, therefore remaining the contract.

the first degree court and the State Court welcomed the request for indemnity to the parents, however, rejected the child's request, basically sustaining that this would not have sufficient capacity to understand and understand and therefore withstand extra-domain damage, As well as such damages would be hypothetical, not, therefore, indemnities. In this sense, the child resorted to the Superior Court of Justice with the intention of also realizing compensation, using the theory about the loss of a chance as its main argument.

In his vote, the rapporteur welcomed the child's request, understanding that he had legitimacy to be indemnified by the ultra-domain damages, which are exactly configured at the frustrated chance of failure to provide the service of the contracted undertaking. In this way, he pointed out that what is noted of the application of this is not the final damage, but, yes, the Chance itself, that in the Rapporteur's words "is the possibility of a likely future benefit, embodied in a hope for the subject, whose deprivation characterizes a damage to the frustration of the likelihood of achieving this benefit. "

Once lost, definitely, by the child, the chance to prevent the treatment of any pathologies configures in the object of indemnity, whose quantum remains set at R $ 60,000.00 (sixty thousand reais) , because from the analysis of the records, the Court concludes that the child had been the principal impaired by the unlawful act of the Ré.

The theory of civil accountability for the loss of a chance arose as an alternative to indemnify the victim of illicit act that has withdrawn the possibility of obtaining a random result. Its conception is due to the activity of the French courts, without any legal basis that discipline, and such theory has been used as one of the integral damage repair hypotheses.

The vote of the judgment in question was paused for the assurance of the injury supported by the child for the purpose of determining the responsibility of the contracted undertaking. Certainty is the main element of injury to be identified by the judgment for the application of theory. In other words, it means that if the damage with regard to the loss of a chance is right and it is due to an unlawful act of a certain subject, the victim must be repaired, since, before the agent's conduct, the chance for obtaining a result random existed.

It should be noted that theory still finds several Óbices regarding its application by the Courts of the country, which is why this precedent of the Superior Court will become a reference for the use of further civil repair purposes.