Intencionalidade do agravamento de risco nos seguros de coisa

• Ano de defesa: 2024
• Autor(a) principal: Adães, Matheus de Mello
• Orientador(a): Queiroz, Odete Novais Carneiro
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Agravamento intencional; Intenção; Risco; Contrato de seguro; Seguros de coisa
• Palavras-chave em Inglês: Intentional aggravation; Intention; Risk; Insurance contract; Property insurance
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://repositorio.pucsp.br/jspui/handle/handle/42675

The aggravation of risk during the execution of the insurance contract is an institute that has theoretical and practical relevance, as it aims to preserve the economic basis of the agreement. In Brazil, its prediction is found in arts. 768 and 769 of the Civil Code, provisions that are subject to varied interpretations. Through the study of national and foreign legislation and doctrine, as well as national jurisprudence, elementary concepts about the insurance contract and its nuances were outlined, moving on to the study of the aggravation of risk as a legal institute adopted in multiple legislations. Continuously, after focusing on the hypotheses of risk aggravation provided for in Brazilian Law and giving special focus to the hypothesis of art. 768 of the Civil Code, the different lines of understanding regarding the field of its application were identified. In the meantime, it was found that a relevant part of the controversy between the understandings originates from the definition of the scope of the expression “intentionally”, brought by the standard, in addition to the systematic interpretation to be given to the institute, in light of the other provisions relating to the contractual type as well. provided for in the Civil Code. After differentiating the concepts of “intent” and “fraud”, it was proposed to study the currents of understanding regarding the occurrence of the accident, the aggravation of the risk and the conduct of the insured. In the end, given the apparent inapplicability or insufficiency of the currents that defend the need for the existence of intention in the accident or in the aggravation of the risk, it was concluded that the intentionality referred to in art. 768 of the Civil Code, in property insurance, resides in directing the will to practice a conduct, which has the predictable result of aggravation of the risk covered by the insurance contract. In view of this conclusion, the predictions of institutes in Brazil and Argentina were compared, which revealed that the criticisms made of the adopted understanding do not arise from an internal incongruity, but rather from the absence of legislative prediction capable of better disciplining the effects of the aggravation of the risk in Brazil