The existential damage as a new modality of a non-patrimonial damage the necessity of widening the principle of the social function of civil law and the quest for an integral compensation to a personal damage

Abstract

Our aim with this paper is to provide an academic contribution, in order to show a new view on the damage to the person, which might arise from an existential damage. And, although it starts at the center of the human feeling, it extends to one´s existence (directed to himself) and in his coexistential relations (towards to the other members of society). From the outline of epistemology, derived from the Constitutionalisation of Civil Law and from the repersonalization of relations, it was developed the study of an injury that contemplates not only the person, but, broadly, the rights democratically consolidated by the Federal Constitution and represented by the principles of sociability, solidarity and the dignity of the human person. Protecting the individual is, above all, to enable each one to develop in society, according to their perspectives and potentialities, therefore, the quest for full reparation of the damage caused to the human person and the protection of this person, against any kind of harm, are overriding goals for the legal order, sheltered under the aegis of the principle of the dignity of the human person, capable of justifying the widening of already existing categories of damages, including the person in his existence and coexistence in their most diverse forms of social interaction. The issue of the following work is to show around the analysis as to the viability and the concreteness of the applicability of the legal concept of existential damage to Brazilian law. Starting from the premise that the existential damage is external, that it radiates and hurts an individual interest, being able to cause the lifelong alteration, in the hedonistic activities and in the life of relations of the victim (that means, from this one person in relation to the other people in society and from these people in relation to that person who suffered the damage). It is concluded that the consequences of existential damage go beyond those caused by non-material damages. Therefore, the existential damage  does not merely affect the one who has been a victim of it, but, directly, people who are in existential correlation with the injured person. It is not a matter of loss of a chance or mere damage to a life project, but on the contrary of the extinction, restriction or impediment of performing an activity, leisure, or relationship existing before The existential damage, once occasioned, consequently, has the power to transform the situational-temporal-spatial reality of the person who suffered it, in way that prevents what is most precious, his existential motivation. The greater or perhaps the most important characteristic of this new modality of damage, proposed in this paper, under the nomenclature of existential damage, is the widening of the Social Function of the institute of civil responsibility.