Sistemas Jurídicos Comparados Prof. Dr. Jorge Carvalho

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1 Sistemas Jurídicos Comparados Prof. Dr. Jorge Carvalho
A Decision by House of Lords - United Kingdom Margarida Duarte Marta Fernandes

2 House of Lords “House of Lords” foi substituído em Outubro de pelo “Supreme Court of United Kingdom”. 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.

3 Sentença: Factos (provados) Obiter dicta – Afirmações a propósito
Ratio decidendi - “razão de decidir” é simultaneamente o “argumento” e a “regra de direito” Decisão

4 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

5 (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) 

6 (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)

7 (2) Lord Atkin Obiter Dicta
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

8 (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)

9 (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)

10 (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)

11 (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)

12 (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)

13 A FAVOR DO AUTOR Decisão: Lord Buckmaster – Indeferido
Lord Atkin – Deferido Lord Tomlin – Indeferido Lord Thankerton – Deferido Lord Macmillan – Deferido A FAVOR DO AUTOR

14 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.

15 Bibliografia Sentença da House of Lords of United Kingdom;
Almeida, Carlos Ferreira de, Introdução ao Direito Comparado, 2ª edição, Almedina.