The expression culpa in eligendo constitutes a classic institute of civil liability, based on deficiency or negligence in the selection of an agent, representative, or subordinate. Primarily inserted in Civil Law and Labor Law, the institute aims to assign to the principal the duty of reparation for damages caused by third parties, consolidating objective or subjective liability (depending on the legal regime) for the failure in selecting the person acting on their behalf.
Concept and Foundation
Culpa in eligendo translates to the vice in the choice of an agent. Legally, it is based on the premise that one who entrusts another with the performance of an activity or task assumes the risk inherent to the capacity, aptitude, and technical or moral suitability of the chosen person. In the Brazilian legal system, the liability arising from the choice is one of the pillars of indirect civil liability or liability for the act of a third party.
The legal nature of the institute has evolved from subjective liability—where the principal's negligence in selection was investigated—to a regime of objective liability in Civil Law and joint and direct liability in Labor Law, regardless of proof of fault in the selection, due to the risk of the enterprise.
Historical Origin and Evolution
The concept derives from Roman Law, consolidating itself in French Civil Law (Napoleonic Code of 1804). Historically, the employer's liability for the employee's acts was justified by culpa in vigilando (failure in supervision) and culpa in eligendo. However, doctrinal evolution, led by authors such as Josserand and Saleilles, shifted the focus from fault to the Risk Theory (ubi emolumentum, ibi onus), where the one who reaps the benefits of the activity must bear the losses resulting from it.
Legal Provision and Normative Framework
In Brazilian Law, liability for the act of a third party finds support in the following provisions:
- Civil Code, Art. 932, item III: Establishes that the employer or principal is responsible for civil reparation for the acts of their employees, servants, and agents, in the exercise of the work assigned to them, or by reason thereof.
- Civil Code, Art. 933: Determines that the persons indicated in Art. 932 shall be liable for the acts listed therein, regardless of fault. This rule buried the need to prove the failure in selection (in eligendo) for the purposes of civil reparation, making the liability objective.
- Federal Constitution, Art. 37, § 6º: Establishes the objective liability of the State (or its delegates) for damages caused by its agents, regardless of culpa in eligendo or in vigilando, with the causal link being sufficient.
Practical Application and Jurisprudence
The current jurisprudence of the Superior Courts (STJ and TST) has consolidated the understanding that employer liability is objective. Culpa in eligendo, in its classic sense, has become a doctrinal concept that explains the historical origin of liability, but it is no longer an evidentiary requirement for conviction.
Within the scope of the Superior Labor Court (TST), the interpretation prevails that the risk of economic activity (Art. 2 of the CLT) absorbs the discussion about the choice of the worker. The employer is objectively liable for damages caused by the employee, and it is irrelevant whether the selection was careful or not.
Doctrinal Divergences
Although objective liability is settled, part of the doctrine still uses the term in eligendo for cases of hiring outsourced workers by companies (lawful or unlawful outsourcing), where subsidiary liability (Precedent 331 of the TST) is discussed under the prism of failure in the choice and supervision of the service provider company. The divergence lies in the nature of this liability: for some, it would be the maintenance of presumed subjective fault; for others, it is a duty of legal guarantee.
Contemporary Relevance
Currently, the institute has relevance in the analysis of due diligence. In high-complexity contracts or risk management, the careful choice of subcontractors and business partners (compliance) acts as an exclusionary factor of liability in regimes where fault is still a constitutive element. The practical impact is manifested in the mitigation of reputational risks and joint liability in production chains.
Legal and Jurisprudential References
- BRAZIL. Law No. 10,406, of January 10, 2002. Establishes the Civil Code. Articles 932 and 933.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Article 37, § 6º.
- BRAZIL. Superior Labor Court. Precedent No. 331: Service provision contract. Legality. Subsidiary liability.
- STJ, REsp 1.201.272/RJ, Rel. Min. Nancy Andrighi, Third Panel, judged in 2011 (precedent on the objectification of liability for the act of a third party).
- DINIZ, Maria Helena. Course of Brazilian Civil Law: Civil Liability. São Paulo: Saraiva.
