THE POSSIBILITY OF REDUCTION OF THE FINE COERCIVE BASED ON DUTY TO MITIGATE THE LOSS

• Main Authors: Caroline Melchiades Salvadego Guimarães de Souza Lima, Roberto Wagner Marquesi
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2018-08-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: duty to mitigate the loss; principles of civil lawsuit; astreintes; good faith process; coercive fine
• Online Access: https://www.e-publicacoes.uerj.br/index.php/redp/article/view/36487/25847

The purpose of this study is to analyze the theory of the duty to mitigate the loss and its application in the scope of Brazilian civil procedural law, with special analysis on the coercive fine, using the deductive and interpretative method through doctrinal, legislative and mainly case law. According to this theory, which comes from the principle of objective good faith, the creditor must mitigate his own loss, in this respect, in a scenario where the creditor remains inert in order to increase the fine, there is an obvious abuse of rights. Therefore, it is necessary to question the consequence and implication when this situation is proven and the position adopted by the judiciary, thus exhausting the problematic of this article, precisely because it is a recent application in the legal system and not yet there is a peaceful positioning among the Courts of Justice, thus contributing with studies to better correlate the exposed topics and demonstrate the applicability of the duty to mitigate the loss to the civil process.