Sistemas Jurídicos Comparados
Prof. Dr. Jorge Carvalho
A Decision by House of
Lords - United Kingdom
Margarida Duarte 002427
Marta Fernandes 002399
House of Lords
• “House of Lords” foi substituído em Outubro de
2009 pelo “Supreme Court of United Kingdom”.
• http://ec.europa.eu/civiljustice/org_justice/org_jus
tice_eng_en.pdf
• Tem jurisdição sobre todo o Reino Unido.
• No direito inglês vigora a atitude de “stare decisis”
princípio segundo o qual, o caso presente deve ser
julgado como foram julgados os casos anteriores
semelhantes.
Sentença:
• Factos (provados)
• Obiter dicta – Afirmações a propósito
• Ratio decidendi - “razão de decidir” é
simultaneamente o “argumento” e a “regra de
direito”
• Decisão
UK House of Lords Decisions
Donoghue v. Stevenson
Factos
•Data: 26 Agosto 1928
•O autor bebeu uma cerveja, produzida pelo réu, comprada pelo amigo a um
retalhista. A garrafa continha pedaços de um caracol decomposto que não
podiam, nem foram, detectados até que a maior parte do seu conteúdo foi
consumido. Como resultado, o autor sofreu de choque e gastroenterite.
•O caso do autor baseia-se em negligência, não em fraude.
•É consenso, não tendo sido nunca questionado, que a lei da Escócia e
Inglaterra nesta matéria é idêntica. Vai utilizar-se a Common Law.
•Court of Session: a favor do autor
•Segunda divisão do Court of Session: a favor do réu
•House of Lords
(1) Lord Buckmaster
Obiter Dicta
•“The only safe rule is to confine the right to recover to those who enter into the contract. If we
go one step beyond that there is no reason why we should not go fifty." (pág. 2)
•"It is difficult to appreciate what is the importance of the fact that the vendor knew who was
the person for whom the article was purchased unless it be that the cage was treated as one of
fraud” (pág. 4)
Ratio Decidendi
•"The breach of the Defendant's contract with A. to use care and skill in the manufacture or
repair of an article does not of itself give any cause of action to B. when he is injured by reason
of the article proving defective."
•From this general rule there are two Well-known exceptions:
•(1) In the case of an article dangerous in itself and
•(2) where the article not in itself dangerous is in fact dangerous due to somedefect or for any
other reason, and this is known to the manufacturer. (pág. 3)
(1) Lord Buckmaster
Conclusão
•Indeferido.
•“In agreeing, as I do, with the judgment of Lord
Anderson, I desire to add that I find it hard to dissent
from the emphatic nature of the language with which
his judgment is clothed. I am of opinion that this
Appeal should be dismissed, and I beg to move your
Lordships accordingly..” (pág. 7)
Obiter Dicta
(2) Lord Atkin
•The rule that you are to love your neighbour becomes m law you must not injure your
neighbour.” (pág. 8)
•"But it would be going much too far to say that so much care is required in the
ordinary intercourse of life between one individual and another that if a machine not in
its nature dangerous, a carriage for instance, but which might become so by a latent
defect entirely unknown although discoverable by the exercise of ordinary care should
be lent or given by one person, even by the person who manufactured it, to another, the
former should be answerable to the latter for a subsequent damage accruing by the use
of it." (pág. 12)
•"The decision of Heaven v. Pender was founded upon the principle that a duty to take
due care did arise when the person or property of one was in such proximity to the
person or property of another that if due care was not taken damage might be done by
the one to the other." (pág.9)
•“My Lords, I do not think so ill of our jurisprudence as to suppose that its principles
are so remote from the ordinary needs of civilised society and the ordinary claims it
makes upon its members as to deny a legal remedy where there is so obviously a social
wrong.” (pág. 10)
(2) Lord Atkin
Ratio Decidendi
•“My Lords if your Lordships accept the view that this pleading discloses a
relevant cause of action you will be affirming the proposition that by Scots
and English law alike a manufacturer of products which he sells in such a
form as to show that he intends them to reach the ultimate consumer in the
form in which they left him with no reasonable possibility of intermediate
examination, and with the knowledge that the absence of reasonable care in
the preparation or putting up of the products is likely to result in injury to the
consumers life or property owes a duty to the consumer to take that
reasonable care.” (pág. 16)
Conclusão
•Deferido.
•“I think that this appeal should be allowed.” (pág. 16)
(3) Lord Tomlin
Obter Dicta
•“Upon the view which I take of the matter the reported cases, some
directly, others impliedly, negative the existence as part of the Common
Law of England of any principle affording support to the appellant's
claim” (pág. 17)
Ratio Decidendi - NÃO TEM
Conclusão
•Indeferido.
•“There is, in my opinion, no material to decide in favour of the
appellant.” (pág. 17)
(4) Lord Thankerton
Obiter Dicta
•“If that contention be sound, the consumer, on her showing that the article has
reached her intact, and that she has been injured by the harmful nature of the article
owing to the failure of the manufacturer to take reasonable care in its preparation
prior to its enclosure in the sealed vessel, will be entitled to reparation from the
manufacturer.” (pág. 18)
•“It is not at all necessary that there should be any direct contract between them,
because the action is not based upon contract, but upon negligence” (pág. 18)
Ratio Decidendi
•In a contract, there’s a duty between the two parties. The Respondent, by producing a
bottle that could not be opened until the final consumer, has put himself into a direct
relationship with the Appellant, therefore, they are in a contract and he owed him a
duty. (deduced from the text)
Conclusão
•Deferido.
•“I am therefore of opinion that the appeal should be allowed and the case should be
remitted for proof, as the pursuer did not ask for an issue.” (pág. 19)
(5) Lord Macmillan
Obiter Dicta
•“I can readily conceive that where a manufacturer has parted
with his product and it has passed into other hands it may well
be exposed to vicissitudes which may render it defective or
noxious and for which the manufacturer could not in any view
be held to be to blame.” (pág. 26)
•“There is no presumption of negligence in such a case as the
present, nor is there any justification for applying the maxim
res ipsa loquitur . Negligence must be both averred and
proved. The appellant accepts this burden of proof and in my
opinion she is entitled to have an opportunity of discharging it
if she can.” (pág. 26)
(5) Lord Macmillan
Ratio Decidendi
•Burden of proof: “semper necessitas probandi incumbit ei qui agit”
"the necessity of proof always lies with the person who lays charges."
(pág. 26)
Conclusão
•Deferido.
•“I am accordingly of opinion that this appeal should be allowed, the
judgment of the Second Division of the Court of Session reversed and
the judgment of the Lord Ordinary restored.” (pág. 26)
Decisão:
•
•
•
•
•
Lord Buckmaster
Lord Atkin
Lord Tomlin
Lord Thankerton
Lord Macmillan
– Indeferido
– Deferido
– Indeferido
– Deferido
– Deferido
Estilo das Sentenças
• Um ou mais Juízes nos Tribunais Superiores
• Speeches ou Opinions
• Decisão: sentido maioritário.
• Extensas, muito pormenorizadas.
• Precedente vinculativo: a decisão servirá para
casos futuros.
Bibliografia
• Sentença da House of
Lords of United Kingdom;
• Almeida, Carlos
Ferreira de, Introdução
ao Direito Comparado,
2ª edição, Almedina.