Suppliers’ Civil Liability for Damage Caused by Autonomous Vehicles: A Brazilian Perspective

The author is most grateful for the kind invitation made by Professor Dário Moura Vicente, Professor Rui Soares Pereira and Ana Alves Leal to contribute to this book, as well as the previous invitation to participate in the International Conference on Autonomous Systems and Law.

Olivon (2022).

Del Carmen (2021).

Olivon (2022). According to the Article, “A survey by the National Council of Justice (CNJ), obtained exclusively by Valor, shows that the number of artificial intelligence (AI) projects—in execution or under development—jumped from 41 to 111 since December 2020. They are being run by 50 Courts and Judiciary bodies, out of a total of 94 consulted by the CNJ.”

See the well-known levels of vehicle autonomy, which range from level 0 (Momentary Driver Assistance) to level 5 (Full Automation). National Highway Traffic Safety (NHTSA).

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code. http://​www.​planalto.​gov.​br/​ccivil_​03/​leis/​l9503compilado.​htm. Access 11 Aug 2022.

Lima (2020, p. 178). A different opinion is defended by Dias de Pinho Gomes (2020, pp. 567–585, p. 572).

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code. “Art. 140. The licensing to drive an automotive and electric vehicle shall be determined through examinations that must be carried out with the executive traffic body or entity of the State or Federal District, the residence or domicile of the candidate, or at the State or District headquarters of the body, and the driver must meet the following requirements: I—be criminally imputable; II—know how to read and write; III—have an identification document. […].”

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code. “Art. 147. The licensing candidate must undergo examinations carried out by the executive traffic body in the following order: I—physical and mental fitness; [...] III—written examination on traffic legislation; IV—notions on first aid, according to the CONTRAN regulations; V—driving, carried out on public roads, in a vehicle of the category for which the candidate is licensing.”

Carlos Efing and De Souza Araújo (2019, item 2).

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code. “Art. 28. The driver must, at all times, have control of the vehicle, driving it with attention and care essential to traffic safety.”

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code “Art. 252. Drive the vehicle: I—with arm outside; II—transporting people, animals, or volume to your left or between your arms and legs; III—with temporary physical or mental disability that compromises traffic safety; IV—wearing footwear that is not firm on the feet or that compromises the use of the pedals; V—with only one hand, except when you must make regulatory arm signals, change vehicle gear, or trigger vehicle equipment, and accessories; VI—using headphones connected to the sound system or mobile phone; Violation—medium; Penalty—fine; […].”

Brazil. Law No. 9503 of September 23rd, 1997. Brazilian Traffic Code “Art. 257. […] Paragraph 1. The vehicle owners and drivers shall be imposed concurrent penalties referred to in this Code every time there is joint and several liability in violation of the precepts, responding each for the common fault attributed to them. Paragraph 2. The owner shall always be responsible for the infringement regarding the previous regularization and completion of the formalities and conditions required for the transit of the vehicle on the land route, conservation and unalterability of its characteristics, components, aggregates, legal and compatible qualification of its drivers, when this is required, and other provisions that it must observe. Paragraph 3. The driver shall be liable for violations arising from acts committed while driving the vehicle.”

National Traffic Council (CONTRAN) (Brazil). Resolution No. 717/2017 of November 30th 2017. Establishes a schedule for technical studies and regulation of vehicular safety items. https://​www.​gov.​br/​infraestrutura/​pt-br/​assuntos/​transito/​conteudo-contran/​resolucoes/​resolucao7172017​.​pdf. Access 10 Aug 2022.

For example, Cintia Rosa Pereira de Lima addresses the liability regime in the absence of a consumer relationship in the use of autonomous cars. [Lima (2020, pp. 208 ff)]. The author also addresses the product liability in general (responsabilidade pelo fato da coisa em geral), mentioning that the Civil Code only regulates this topic in relation to three situations: liability for animals (Art. 963); building’s owner or construction liability (Art. 937); and liability for objects thrown from a building (Art. 938). In her view, however, “the hypothesis of autonomous cars does not fit into any of these three hypotheses provided for in the CC/02, which reveals the need for an addition to the CC/02 to provide specific rules on damages for the facts of machines with artificial intelligence […].” (p. 223).

Brazil. Law No. 8078 of September 11th, 1990. Brazilian Consumer Defense Code. Art. 2.

Brazil. Law No. 8078 of September 11th, 1990. Brazilian Consumer Defense Code. “Art. 17. For the purposes of this section, all victims of the event have the same rights as consumers.”

When addressing Art. 3, paragraph 1 of the CDC, Cintia Rosa Pereira de Lima reaches the same conclusion. Lima (2020, p. 262).

Brazil. Law No. 8078 of September 11th, 1990. Brazilian Consumer Defense Code. “Art. 12. The manufacturer, producer, builder (whether domestic or foreign), and the importer are liable, regardless of guilt, for the reparations for harm caused to consumers due to defects linked to product project, manufacture, construction, assembly, formulas, manipulation, presentation or acclimatizing conditions, as well as lack of information or providing inadequate information about public use and risks.”

Brazil. Law No. 8078 of September 11th, 1990. Brazilian Consumer Defense Code. “Art. 18. Suppliers of durable or nondurable consumer goods will answer for any quality or quantity defects that render these goods inadequate for their purpose or that diminish their value, as well as any defects resulting from the product being different from what is expected, from what is indicated in the packaging, label, or advertisement, taking into account any variations that may be a result of the goods’ very nature. The consumer has the right to demand replacement of any defective parts. […] Paragraph 6. The following are deemed unfit for use and consumption: I—any expired product; II—products that have deteriorated, been altered, changed, damaged, falsified, corrupted, products that include a type of fraud, that are harmful to life or health, dangerous, or even those that did not adhere to manufacturing, distribution or presentation rules; III—products that, for any reason, may be inadequate for the purposes for which it was intended.”

Some authors present a different view: “[…] an autonomous system is designed to drive the vehicle autonomously under the most varied circumstances. Therefore, this level of dangerousness of autonomous cars is within the provisions of Arts. 8 and 9 of the CDC. Therefore, the emerging behaviors of the machines cannot be considered product defects (whether apparent or hidden) to the extent that they were developed exactly for this purpose.” Lima (2020, p. 365). (Free translation).

Lima (2020, p. 260). In the original: “quanto à responsabilidade civil, o CDC atinge tanto o fornecedor imediato ou direto (comerciante ou ofertante do produto ou serviço), quanto o fornecedor mediato ou indireto (fabricante, produtor, construtor, importador, montador, criador, transformador, exportador, distribuidor, etc.)”.

Tepedino and Da Guia Silva (2019, pp. 293–323, p. 319).

For some authors, it would be possible to rule out the liability of the supplier, even under the CDC, when the configuration of fortuitous event or force majeure occurs and if there is external fortuity (fortuito externo), i.e., a fact that is unrelated to the supplier’s business and, generally, manifests itself after the manufacture or performance of the service. If this line of understanding is adopted and if it is considered that “the emerging behavior of machines is totally beyond the control of the supplier, to the extent that intelligent machines can adopt a conduct not configured by engineers and programmers”, it would be possible to conclude for the existence of exclusion of liability. See Lima (2020, pp. 280, 291).

Mulholland (2020, pp. 325–348, p. 345), Rampazzo Soares (2019, pp. 149–176, pp. 157–160).

Lima (2020, p. 216). (Free translation).

Wesendonck (2019, item 1), Rampazzo Soares (2019, pp. 149–176, p. 162).

In this sense, Article 931 was addressed by Statement No. 42 of the 1st Civil Law Conference, promoted by the Council of Federal Justice—which does not have the force of a law but serves as a guideline for Brazilian courts. According to Statement No. 42, Article 931 expands the concept of defect when compared to what is provided in Article 12 of the Consumer Defense Code.

Martins-Costa (2020, pp. 389–418).

Rampazzo Soares (2019, pp. 149–176, p. 162).

Wesendonck (2012, p. 214), Tepedino and Da Guia Silva (2019, pp. 293–323, p. 311), Calixto (2009).

Wesendonck (2012, p. 215), Calixto (2009), Pereira Pinheiro et al. (2019, p. 252), Godinho and Rosenvald (2019, pp. 21–29, p. 24), Mulholland (2020, pp. 325–348, p. 335).

Godinho and Rosenvald mention the existence of this opinion. See Godinho and Rosenvald (2019, pp. 21–29, p. 34).

Wesendonck mentions the existence of this opinion. See Wesendonck (2012, p. 215).

Wesendonck (2021, pp. 195–217, pp. 211–212).