Essay on Sentimental Stelionato: the possibility of civil accountability due to economic exploitation in dating relationships

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ORIGINAL ARTICLE

SOUZA, Nathalia Verônica Pires de [1], DIAS, Luciano Souto [2]

SOUZA, Nathalia Verônica Pires de. DIAS, Luciano Souto. Essay on Sentimental Stelionato: the possibility of civil accountability due to economic exploitation in dating relationships. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 06, Vol. 07, pp. 91-107. June 2020. ISSN: 2448-0959, Access link:

SUMMARY

The research invites reflection on the possibility of civil accountability in the event of economic exploitation in dating relationships, a theme of undeniable relevance, but little explored in contemporary law.  It is to be expected that the period of dating is marked by a relationship of loyalty and trust between the boyfriends, however, it has become common to disrespect these valuable premises, especially in the face of conducts that show a profitable purpose, which may even justify the provocation of judicial protection. In view of these observations, this essay addresses sentimental swindle, supported by moral, legal-normative and principled precepts, notably with emphasis on the principles of human dignity, objective good faith and affectivity, seeking, henceforth, to demonstrate the presuppositions for the configuration of possible civil liability. The research shows that, once the sentimental swindle is configured and the legal assumptions are configured, there is the possibility of civil accountability of those who economically exploit dating relationships.

Keywords: Sentimental stelionate, civil liability, possibility, indemnification, objective good faith.

1. INTRODUCTION

Sentimental swindle is a recent theme in contemporary law, which has divided opinions regarding its configuration and possible legal consequences. The absence of normative forecasting, together with the scarce bibliography, evidences the relevance of the approach proposed in this research, which includes reflection on the possibility of civil accountability due to economic exploitation in dating or engagement relationships.

Love relationships, which allow the expansion of mutual knowledge among those involved, the strengthening of bonds and the expansion of sentimental coexistence, commonly find a firm pillar in the valian premises of trust, honesty, honor, respect, and mutual consideration.

The couple’s coexistence in the courtship period does not present affectio maritalis, which is marital affection or the intention of forming a family and, moreover, does not allow the configuration of stable union, in accordance with the provisions of Article 1,723 of the Civil Code, however, the relationship has characteristics such as stability, continuous coexistence, mutual trust and expected loyalty.

Despite the positive expectation subjectively idealized regarding the behavior of the boyfriend or girlfriend, in certain situations it has been found a true violation of the expected good faith in conduct during dating, based on attitudes that evidence the intention to obtain a patrimonial advantage, with the facilities offered due to the love confidence built in the relationship.

Therefore, it is relevant to analyze the possibility of civil liability for economic exploitation in dating relationships, notably from the support on legal reasons that support this hypothesis. Moral reasons, allied to the principle, jurisprudential and normative conjuncture, point to the possibility of accountability for possible material and moral damage caused by the use of affective linkage to measure advantages of patrimonial character.

The issue of sentimental swindle has substantiated demands conducted to the Judiciary, already being known condemnatory decision involving the restitution of amounts related to loans and expenses carried out in the constancy of the relationship.

Although it is common in daily forensics to have numerous demands involving situations of family law, generally supported by the norms in force, the “sentimental swindle” does not have specific positive rule in the legal system, which requires the analog application of normative precepts that support civil liability in general.

The research invites reflection on the configuration of sentimental swindle in dating relationships, which until then do not have specific protection in the legal system, as well as the possibility of civil accountability in the face of its occurrence. Moreover, the text analyzes the assumptions for the configuration of sentimental swindle, in compatibility with the precepts of civil liability.

Dating relationships find ample space in society, being undeniably common to most single people. Therefore, it is reasonable that, in the face of proven harm suffered by the victim from harmful conduct of the boyfriend or girlfriend, the normative system, in proactive innovation, extends its legal protection to dating relationships, safeguarding the possibility of compensation for any damages, of a material or moral nature.

2. SENTIMENTAL SWINDLE IN DATING RELATIONSHIPS: JURISPRUDENTIAL CONFIGURATION AND POSITIONING

Dating relationships, although not characterized or recognized as a family entity, have sometimes had implications in the legal field, especially with regard to material assistance given to one boyfriend to another, in the course of the relationship, as well as due to the possibility of reparation for material and moral damages arising from civil liability (SENA, 2011).

Dating is a relationship that precedes and prepares for the consolidation of a stable union or formalization of marriage. It is assumed that there is loyalty, loyalty and companionship among those involved, however, from the moment that some of these pillars are disrespected and one of those involved intentionally starts to extract advantages from the other, taking advantage of the sentimental bond that unites them, the possibility of civil accountability arises.

The expression “swindle” has criminal typification in article 171 of the Penal Code (Decree- Law n. 2,848 of December 7, 1940), which prescribes legally disapproved conduct under the following terms: “Art. 171 – Obtain, for himself or for others, unlawful advantage, to the detriment of others, inducing or keeping someone in error, by artifice, ruse, or any other fraudulent means:”

The crime of swindle has as characteristic the induction of someone to a false conception of something, in order to acquire illicit benefit for themselves or for others.

In case-by-case situations in which, for example, the boyfriend avails himself of the trust of the other to use a credit card and purchase products, goods or services, or when there is a transfer of cash to accounts of the boyfriend or third parties, with no agreement or knowledge of the boyfriend or girlfriend who is victimized, the sentimental swindle will be restored.

In this sense, the penalist Greco (2014, p. 236) endorses that:

Since the emerged of social relations, man uses fraud to conceal his true feelings, intentions, that is, to somehow hide or distort the truth, in order to obtain advantages that, in theory, would be undue.

José Franklin de Souza understands that the term “sentimental” can define a broad interconnection to feeling or sensitivity. In the context of forensic psychiatry, the sentimental denomination, “is strictly linked to the capacity of positive feelings to others”. (SOUZA, 2018, p.620)

The “sentimental swindle” will remain configured when, in dating relationships, one of the boyfriends obtains, for himself or for others, illicit advantage, to the detriment of the other boyfriend, inducing him or keeping him in error, by artifice, ruse, or any other fraudulent means”

For Santos (2018, p. 03), the sentimental swindle will remain configured “when one of the parties intends to obtain for himself or for others, unlawful advantage to the detriment of others, encouraging or keeping someone in error, through artifice, as if it were a trap or any other fraudulent means.”

According to Nelson Gonçalves (2014), the seductive swindler is an actor, who establishes a sentimental relationship with the victim and even puts himself in her place to practice blows with sentimental refinements. The author adds:

They are counterfeiters, crooks, bandits, criminals like the others by the law, but the difference is that they practice fraud with sentimental refinement. And to do so, they use a swindling labia that sometimes impresses the most creative screenwriters of cinema (GONÇALVES, 2014, p. 01).

According to the understanding of Hewdy Lobo, the sentimental swindle:

It is defined by the fact that loving trust between a couple to which a person of this couple uses illicit means with the confidence of feeling to obtain illicit advantages for themselves or others. (LOBO, 2017, p.01)

Article 186 of the Civil Code establishes that the person who, by unlawful act, causes harm to others, is obliged to repair it. Henceforth, the Civil Code itself clarifies the unlawful act, by providing that the person who, by voluntary action or omission, negligence or recklessness, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.

The expression “sentimental swindle” was adopted as the basis for a decision in a collection lawsuit, which processed in Brasilia, file no. 2013.01.1.046795-0 (single numbering, CNJ No. 0012574-32.2013.8.07.0001), in which the judge of the 7th Civil Court, in a judgment handed down on September 8, 2014, ordered the defendant to refund to the plaintiff the amounts that were transferred to him, as well as to the wife of that , in the course of the relationship, which lasted from June 2010 to May 2012, as well as the amounts corresponding to the debts existing in the name of the defendant and that were paid by the author, as evidenced in the file, and also the amounts destined to the payment of clothes and shoes, proven in the file and amounts of telephone bills paid by the author. In addition, it ordered the defendant to pay the costs, procedural expenses and attorney’s fees arbitrated by 10% on the updated value of the conviction. Here is the content of the publication as to the decision given:

When I consider the application made in the face of qualified parts of[…] the file[…], I order the defendant to repay the plaintiff: a) The amounts transferred to him and his wife Mrs. […](cf. Marriage Certificate at f. 97 and transfer of f. 192), by bank transfer from the author’s bank account, in the course of the relationship (June 2010 that lasted until May 2012), and which are duly proven in the file through the documents attached to the f. 190-220; b) The amounts corresponding to the debts existing in his name (name of the defendant) paid by the author according to documents of f. 138-140, f. 141-165 e f. 165-176); (c) the amounts intended for the payment of clothing and shoes, proven to the f. 43-44; and d) The amounts of telephone bills paid by the author, proven to f. 48-89. These amounts should be adjusted monetarily by the INPC, plus interest on late payment of 1%(one percent) per month, both counted from each disbursement (Summaries No. 43 and 54 of the Superior Court of Justice). Having the plaintiff’s share of the minimum part of the application (CPC, art. 21, sole paragraph), I sentence the defendant to pay the costs, procedural expenses and attorneys’ fees that, in accordance with the normative provisions encamped in § 3 of art. 20 of the Code of Civil Procedure, fixed at 10% on the updated value of the conviction. After final, upon the collection of the final costs, if not open, be discharged and filed. Sentence recorded on this date. Publish and intime. Brasília – DF, Monday, 08/09/2014 at 16h21. Luciano dos Santos Mendes, Substitute Law Judge (FEDERAL DISTRICT, 2014, p. 01)

An appeal was filed by the defendant, and the file was distributed to the 5th Civil Class of the Court of Justice of the Federal District and Territories, under the rapporteurship of Judge Carlos Rodrigues.  On May 19, 2015, the cord menu was published in the Journal of the Judiciary, which dismissed the appeal, in the following terms:

CIVIL PROCEEDINGS. END OF A LOVING RELATIONSHIP. PROVEN MATERIAL DAMAGE. Compensation. SEALING TO UNJUST ENRICHMENT. ABUSE OF THE RIGHT. OBJECTIVE GOOD FAITH. Probity. SENTENCE MAINTAINED. 1. The sentence must be maintained herein that, from the documentation carried to the file, embodied mostly by messages exchanged between the parties, it is inferred that the plaintiff/defendant made continued transfers to the defendant; made debt payments to financial institutions on behalf of the defendant/defendant; acquired movable goods such as clothing, shoes and cell phone devices; he paid telephone bills and assumed the payment of various expenses incurred by him, thus acting in the hope of maintaining the loving relationship that existed between the plaintiffs. It is also corroborated, and in the same sense, the promises made by the defendant man in the sense that, as soon as he returned to have financial stability, he would repay the amounts he obtained from his victim in the course of the relationship. 2. By promising to return the obtained documents, the victim was created with the fair expectation that he would receive back these values. The restitution imposed by the sentence has the power to remove unjust enrichment, and this phenomenon is repudiated by law and norm. 3. The judge is not obliged to rule on all the provisions of law relied on by the parties, when he considers that the details of the solution of the dispute are dispensable, even if deducted by way of prequestionation. 4. Known and unerted resource. Decision TO KNOW. DENY DISAPPROVAL. UNANIMOUS (TJDF. Judgment n.866800, 20130110467950APC, Rapporteur: CARLOS RODRIGUES, Reviewer: ANGELO CANDUCCI PASSARELI, 5th Civil Class, Trial Date: 08/04/2015, Published in DJE: 19/05/2015. P. 317) (DISTRITO FEDERAL, 2015, p. 317)

In the case-by-case situation, the Court understood that the benefits received by the defendant were acquired through the trust obtained through unlawful conduct, using artifice to enrich improperly. As a member, the appeal was dismissed, maintaining the judgment in its entirety. As can be seen from the decision, the Federal District Court considered as the grounds of the decision the prohibition of unjust enrichment, abuse of the right and objective good faith.

It is notorious that there is a great challenge to establish requirements, which prove the material damage suffered by the victim, in view of being common, the idea of economic aid between the parties in the course of the relationship, however, it is necessary to distinguish mutual help from the material damage actually caused.

3. CIVIL REPARABILITY AND ITS PRINCELY SUPPORT

The obligation to indemnify arises from the existence of a voluntary action or omission, causal relationship or causal link, damage and guilt.  In this sense, art. 186 of the Civil Code establishes that “He who, by voluntary action or omission, negligence or recklessness, violates the right and causes harm to others, even if exclusively moral, commits a lawful act”.

Gonçalves (2015, p. 501), defines the word “responsibility” as “recomposition, obligation to repay or repay.” In civil liability, therefore, the injured party has the right to claim reparation, seeking in the offender’s estate, a moral or material indemnification. (GONÇALVES, 2015, p.502)

According to the positioning of Maria Helena Diniz:

Civil liability presupposes a legal relationship between the person who suffered the injury and the one to be repaired, shifting the burden of the damage suffered by the injured person to another person who, by law, must bear it, thus taking into account the moral, social and legal need to ensure the safety of the victim violated by the perpetrator of the injury. It aims, therefore, to guarantee the right of the injured party to safety, through the full compensation of the damage suffered, restoring as far as possible the status quo ante (DINIZ, 2014, p. 23-24).

Felipe Cunha de Almeida, recalling the teachings of Sérgio Cavalieri Filho, points out that the elementary feeling of justice assists the interest in seeking the obligation of the cause of the damage to proper reparation. Therefore, when the unlawful act generates damage, there is a disruption of the legal and economic balance that existed previously between the agent and the victim. In view of this, there is a need to see the broken balance restored, replacing the status quo ante. (ALMEIDA, 2015, p.31)

The doctrinal understanding in the field of the assumptions of civil liability is vast and divergent. According to Diniz (2014, p 54), these assumptions are difficult to characterize, because there is an immense doctrinal inaccuracy.

To better understand these assumptions, we adopt the method used by Gonçalves (2017, p.52) who, when analyzing article 186 of the Civil Code, clarifies the existence of four essential elements of civil liability: action or omission, guilt or guile of the agent, causal relationship and the damage experienced by the victim.

The action or omission refers to any person who, by commissive or omissive conduct, will cause harm to others.

The legal consequences arise at a time when an action or omission arising from externalised voluntary human behaviour has an effect on the legal sphere. In short, the action is due to positive behavior, a doing, unlike the omission, which occurs by not doing something, for refraining from performing a due behavior (CAVALIERI FILHO, 2014)

The configuration of the sentimental swindle presupposes an action, that is, an attitude of one of the parties, which causes legal effects.

With regard to the requirement of the agent’s guilt or intent, it must be understood that the existence of the deceit comprises the idea of infringement, of intent, of will, while the fault, in the absence of diligence, negligence, recklessness or malpractice. Thus, the guile refers to a premeditated, conscious, voluntary violation of legal duty. (GONÇALVES, 2017)

With regard to this point, the jurist Flávio Tartuce affirms:

The de intent constitutes an intentional breach of legal duty for the purpose of harming others. This is the voluntary action or omission mentioned in art. 186 do CC. In accordance with what is set out in Art. 944, caput, of the Civil Code, present the guile, is worth the rule of the principle of reparation of damages, which means that all damages incurred by the victim will be indemnified. […]The decele, in civil liability, deserves the same treatment of serious or very serious guilt (TARTUCE, 2013, p. 445).

It should be noted that guilt is free from any intentional element, and occurs for recklessness, negligence or malpractice, which does not rule out the duty to repair any damage caused.

The element of guilt, however, is not important in the analysis of the possibility of civil reparation in dating relationships, considering that the civil liability in such relationships derives from premeditated, conscious and voluntary actions, that is, in which the agent’s den will remain.

As for the requirement of the causal link between fact and damage for the configuration of the duty to indemnify, according to Sílvio de Salvo Venosa, the causal relationship derives from natural laws, referring to the link that unites the agent’s conduct to the damage, that is, through the analysis of the causal relationship that it is possible to identify the cause of the damage. “If the victim, who has experienced damage, does not identify the causal link that leads to the harmful act to the person responsible, there is no way to be resarcida.” (VENOSA, 2012, p. 53)

In this sense, Carlos Roberto Gonçalves reiterates the idea of Silvo Salvo Venosa, pointing as an example a situation in which there is no causal link between the agent’s conduct and the damage:

If there was the damage, but its cause is not related to the behavior of the agent, there is no causal relationship and also the obligation to indemnify. If, verbi gratia, the driver is driving correctly and the victim, wanting to commit suicide, throws himself under the wheels of the vehicle, it can not be said to have “caused” the accident, because in fact it was a mere instrument of the victim’s will, this is responsible exclusively for the event. (GONÇALVES, 2017 p. 54)

The causal link is a relevant aspect to be observed in the solution of any case related to civil liability, that is, it is necessary to determine whether the agent gave cause to the result (CAVALIERI FILHO, 2012).

Causality is present in the sentimental swindle, considering that the agent causing the damage has an intimate relationship with the victim. Thus, the relationship of trust between the parties refers to the bond that binds the agent’s conduct to the damage.

With regard to the requirement of damage, it is not possible to hold someone civilly liable, without proof of the damage, which refers to the injury suffered, and may be individual or collective, moral or material (VENOSA, 2012)

According to Cavalieri Filho (2012, p. 77):

The damage is at the heart of the rule of civil liability. The duty to repair presupposes the damage and without it there is no compensation due. The risk of harm is not enough, illegal conduct is not enough. Without a concrete consequence, harmful to economic or moral heritage, the duty to repair is not imposed. Art. 927 of the Civil Code is expressed in this sense: ‘he who, by unlawful act (arts. 186 and 187), cause harm to others, is obliged to repair it.” Art. 186, in turn, speaks of violating law and causing harm.

Property damage is lacking proof from those who claim them. In this field, there are ample doctrinal and jurisprudential manifestations, with the interpretation that one cannot repair a hypothetical or eventual damage. The doctrine understands that harm, as an element of civil liability, needs to be current and certain (TARTUCE, 2018).

With regard to exclusively moral indemnification, it cannot be said that it has solely the intention of repairing the pretium doloris, however, it seeks to restore the dignity of the offended. In short, moral damage comprises an injury to the person’s psychic heritage, to his dignity, affecting personality rights. As Sílvio de salvo venosa points out, they are damages that are difficult to assess money, and there is no specific basis of equivalence regarding moral damages (VENOSA, 2012).

In the context of dating relationships, material damage can be found in chief by means of proof of transfers or deposit of cash, records of conversations regarding the negotiations and promise of payment, invoices, photographs and witnesses. With regard to moral damage, it will remain configured due to the breach of trust that existed in the relationship, directly affecting the dignity of the victim.

Given the assumptions of retro civil liability exposed, it is possible to verify that the conditions inherent to this institute trigger a series of consequences for the parties involved, and first an action (conduct) should be practiced, as a result of this injury (damage) and, finally, it should be verified the existence of a link between the action and the result, configuring civil liability.

Therefore, in dating relationships, when one of the parties takes advantage of the relationship of affection to measure advantages related to the patrimony, then an action arises that will injure the other party, thus fitting the possibility of civil reparation.

It is also appropriate to note the principiological legal support of civil reparability due to sentimental swindle.

The legal system has numerous principles, which support and balance the application of the legal standard. In the present study, the principles of human dignity, objective good faith and affectivity are considered as guidelines to support the possibility of civil accountability for sentimental swindle.

The above principle of the dignity of the human person is a relevant basis for civil liability. According to Tartuce (2013, p. 303) “it would be the personalization of civil law, that is, the valorization of the human person to the detriment of property”.

Constitutionally, the dignity of the human person is recognized as one of the foundations of the Federative Republic of Brazil, as provided for in item III of art. 1° (TAVARES, 2012, p. 584).

On the subject, Moraes (2017, p. 41) states that:

Dignity is a spiritual and moral value inherent to the person, which manifests itself singularly in the conscious and responsible self-determination of one’s own life and which brings with it the claim to respect on the part of other people, constituting an invulnerable minimum that every legal statute must ensure, so that, only exceptionally, limitations can be made to the exercise of fundamental rights, but always without underestimating the necessary esteem that all people deserve as human beings.

Understanding human dignity can suffer historical, religious and political influences and may vary in different jurisdictions. In practice, human dignity presents two faces, one focused on philosophy, where it manifests the moral values that characterize all people; another, focused on the law, where it translates legal positions securitised by individuals, protected by coercive norms and judicial action. In short: morality in the form of law (BARROSO, 2010).

According to Ricardo Mauricio Freire Soares, the principle of the dignity of the human person is shaped as the basis for several other principles:

This principle of the dignity of the human person allows reconstructing the way of understanding and applying fundamental rights in the Brazilian legal system, enhancing the realization of justice by providing: the acceptance of the direct and immediate applicability of fundamental rights; the recognition of the fundamentality of social rights of a benefit; the inadequacy of the concepts of “reserve of the possible” in Brazilian constitutionalism; acceptance of the idea of sealing the setback in the field of fundamental rights; and the refusal to hypertrophy the symbolic function of fundamental rights (SOARES, 2010, p.18).

Moreover, in view of the sentimental swindle in dating relationships, one cannot fail to mention the relevance of the affective aspect. Affection contributes to the person’s own moral, social and psychological formation, boosting self-esteem. Therefore, it is important to analyze affection as a fundamental right belonging to the dignity of the human person (CARDIN e FROSI, 2010).

Another principle that deserves to be highlighted is that of objective good faith, one of the guiding guidelines of the Brazilian Civil Code. The aforementioned normative document even prescribes, in article 113, that “legal business must be interpreted in accordance with good faith and the uses of the place of its celebration”.

In this perspective, this principle belongs to private law, based on the idea of eticity, as it represents an ideal of behavior to be practiced in interpersonal relationships. In this sense, being founded as a principle of an ethical nature, “it presents a connection with the cardinal principle of the dignity of the person, housed in constitutional headquarters and which allows the subject a condition of ensuring basic desires” (LÊDO E MARQUESI, 2017, p.251).

According to the principle of eticity, good faith gained significant appreciation in contemporary law, going beyond the field of ideas (subjective good faith), of intention, becoming part of the field of acts (objective good faith) of loyalty practices. Therefore, objective good faith is idealized as a way of incorporating legal business in general, as an auxiliary instrument of the law enforcer to complement gaps, of empty spaces left by the legislator (TARTUCE, 2005, p.1)

According to Antônio Lago Junior, in order to establish whether objective good faith remained in a case-by-case situation, the following question must be asked: what would be the reliable and loyal conduct? After answering, one should ask: did the conduct of the agent, in the case under analysis, respect this pattern? Thus, from these two answers, it is possible to perform an analysis whether or not you hear a violation of objective good faith (JUNIOR, 2017, p.26)

With regard to objective good faith in marriage relations, the Civil Code, in article 1,566, provides for the duties of both spouses. Flávio Tartuce points out the relationship of some of these duties with this principle:

The first duty is that of fidelity (art. 1.566, inc. I), which maintains a direct relationship with objective good faith, understood as a loyal conduct that must exist between the parties to the legal business in question. The second duty is mutual assistance (art. 1.566, inc. II), which also stems from good faith, being understood not only as economic assistance, but also affective and moral assistance. But, without a doubt, the duty that most maintains the duty with the duty of loyalty is that of mutual respect and consideration (art. 1.566, inc. V). (TARTUCE, 2005, p. 6)

It should be noted that although this essay analyzes the possibility of civil liability in dating relationships, it is relevant to observe at what points the principle of objective good faith relates to the duties assigned to the spouses, considering their influence in these relationships.

In view of these considerations, the principle of objective good faith is not only linked to legal contracts, but also in any relationship involving individuals, so that unlawful acts that cause harm to others should be avoided, because they can generate consequences capable of implying both civil and criminal liability.

The venire contra factum proprium stands out in the configuration of the principle of objective good faith. Farias and Rosenvald thus pronounce on the theme:

The venire contra factum proprium (or prohibition of contradictory behavior) so immediately evidences the essence of the obligation of behavior according to objective good faith (i.e., according to the expected ethical sense of all) that from it it is possible to measure the whole of the principle. Well, the prohibition of contradictory behavior is a modality of abuse of rights that arises from the violation of the principle of trust arising from the integrative function of objective good faith (CC, art. 422). (FARIAS E ROSENVALD, 2016, p. 126)

The normative system prohibits behavior capable of frustrating the expectation generated between the parties, because such frustration leads the injured to the suffering of the consequences of the unlawful act and, consequently, leads to the imbalance of the relationship.

In dating relationships, when one party uses trust as a tool to harm the other party, there is no denying the configuration of a behavior that goes against the ideals of objective good faith, leaving, therefore, an abuse of rights.

The principle of objective good faith is based on eticity, aiming at the legal certainty of social relations, in order to prevent any of the parties from suffering losses resulting from other people’s conduct.

It remains to highlight the principle of affection that, in general, covers rights related to the family, notably in the face of the common affection among its members. Affection represents a feeling of affection that is solidified among people, in the family and relationships.

Within the scope of modern jurisdiction, affection can be included in the list of personality rights, and has been gradually recognized as a legal value arising from the principles of solidarity and the dignity of the human person (CARDIN e FROSI, 2010).

According to Tartuce (2007, p. 12):

Affection may be pointed out today as the main foundation of family relationships. Even though the word affection is not included in the Greater Text as a fundamental right, we can say that affection results from the constant valorization of human dignity.

Arnaldo Rizzardo addresses the relevance of affectivity as a value protected by the legal order:

Of all, the importance of affectivity is known, which involves the vast world of a decisive subjectivity in the psychic structure of the person, and cannot be disconnected from its growth and formation. It is undeniable that affection plays an essential role in the psychic and emotional life of the human being. Affectivity is a necessary condition in the constitution of the inner world (RIZZARDO apud ALMEIDA, 2015, p. 3).

The bonds of affection and solidarity derive from the coexistence in the family, and externally, between families (ALMEIDA, 2015).

Considering that coexistence generates affection, questions related to dating relationships should also take into account this principle.

In view of the considerations presented, it is permissible to recognize the existence of affective responsibility also in dating relationships.

4. FINAL CONSIDERATIONS

From the above in this essay it is possible to evidence reflections of civil liability in dating relationships, especially with regard to the claim of reparation for any damage caused, from the analog application of the legal norm and with support in moral precepts and in the principles of the dignity of the human person, objective good faith and affectivity.

Although dating relationships are characterized by behaviors that demonstrate personal attachment, publicity and continuity, they still do not have adequate protection of the legal system.

It would not be appropriate for the legal system to regard love as a duty, however, non-compliance with good faith, notably from the recognition of sentimental swindle, must be faced in accordance with the premises of civil liability, consequently generating the obligation to remedy any damages.

I am sure that the simple economic contribution among those involved in the dating relationship does not generate sanction, and the law should pay attention to behaviors that evidence the breaking of good faith, loyalty and trust existing in the relationship.

Any legal claim having as object the civil liability involving dating relationships must present the maximum evidence capable of unequivocally demonstrating the configuration of the requirements for civil liability.

The legal system cannot disregard any intentional conduct harmful to good faith in dating relationships that show breach of trust, abuse of the right and violation of good faith, and may even cause the unjust enrichment of the one who benefited economically from a dating relationship.  The normative system should extend its protection to dating relationships, paying attention to the configuration of the sentimental swindle, as well as the possibility of its reparation, which may avoid harmful conduct and safeguard the interests of victims in the face of possible injustices.

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[1] Postgraduate in Tax Law from the Pontifical Catholic University of Minas Gerais – PUC Minas; Bachelor’s degree in Law from the Law School of Vale do Rio Doce – Fadivale.

[2] PhD in Communication Sciences. Master’s degree in Law. Master’s degree in Maestría En Derecho International Public. Specialization in Civil Law and Civil Procedure. Law degree.

Sent: May, 2020.

Approved: June, 2020.

DEIXE UMA RESPOSTA

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