CONTRACTUAL BREACH AND FULL COMPENSATION:

DIRECT DAMAGES, LOST PROFITS, AND CONCLUSIVE EVIDENCE BEFORE THE STJ

Abstract

The present article examines the legal framework governing full compensation for losses resulting from contractual nonperformance in Brazil, based on Article 389 of the Civil Code (CC), which imposes on the debtor liability for losses and damages, plus interest, monetary adjustment, and attorney’s fees. The central focus lies in the distinction between, and the evidentiary rigor required for, the characterization of the components of losses and damages: Direct Damages (Danos Emergentes)—what the creditor effectively lost—and Lost Profits (Lucros Cessantes)—what the creditor reasonably failed to earn or gain. Under procedural law (Art. 373, I, CPC), lost profits cannot be merely hypothetical, remote, or presumed; they require conclusive proof that they arise as a direct and immediate effect of the debtor’s conduct. The case law of the Superior Court of Justice (STJ) reinforces this understanding by rejecting any presumption of lost profits without effective evidence, including hypothetical profits from business activities that had not even begun (REsp 1.750.233/SP). Moreover, the Court admits the cumulation of compensation for lost profits with a late-performance penalty clause in cases involving delays in delivering real estate units.
In the non-pecuniary sphere, the article addresses Moral Damages arising from contractual breach, particularly the delay in delivering real estate units. The STJ has consolidated the understanding that moral damages in this context are not presumed (in re ipsa) (REsp 1.641.037/SP), requiring proof of exceptional circumstances that go beyond mere inconvenience. Examples include a prolonged delay of two years (AgRg no AREsp 693.206/RJ) and delays that resulted in the postponement of the buyers’ wedding (REsp 1.662.322/RJ). The analysis is guided by the modern contractual doctrine, which mitigates the rigidity of pacta sunt servanda through the principles of the social function of contracts and objective good faith. Objective good faith (Art. 422, CC) imposes ancillary duties such as loyalty, cooperation, and, critically, the duty to provide information and to act with diligence at all stages of the contractual relationship. These principles justify judicial intervention to ensure economic balance, permitting the reduction of abusive or disproportionate contractual penalties (Art. 413, CC).