The expression in memoriam, of Latin origin and translated as "in memory," constitutes a legal-cultural institute of a non-patrimonial nature, primarily linked to Civil Law, Family Law, and Personality Rights. Its purpose lies in safeguarding the objective honor, image, and dignity of deceased individuals, granting their successors the legitimacy to protect the memory and moral integrity of the de cujus against posthumous offenses.
Concept and Foundation
The in memoriam institute transcends mere posthumous homage, consolidating itself as a legal prerogative for the protection of the deceased's memory. Legally, death extinguishes civil personality, under the terms of Art. 6 of the Brazilian Civil Code (CC/02), ceasing the capacity for rights and exercise. However, the contemporary legal system does not tolerate the total abandonment of the deceased's image and honor, recognizing the existence of an autonomous right of successors to preserve the moral legacy of the deceased.
The legal nature of this protection lies in the sphere of personality rights, which have post-mortem efficacy. The majority doctrine, founded by authors such as Pontes de Miranda and, more recently, Anderson Schreiber, understands that although the de cujus is no longer a holder of rights, the offense to their memory constitutes a reflex damage (or ricochet damage) to their heirs, who have the legitimacy to seek civil reparation for moral damages, under the terms of Art. 12, sole paragraph, of the Civil Code.
Historical Origin and Evolution
Historically, the protection of memory dates back to Roman Law, through the actio injuriarum, which allowed heirs to protect the fama of the deceased. In the Brazilian legal system, the evolution occurred gradually. Initially, the understanding was restrictive, limiting reparation to patrimonial damages. With the promulgation of the 1988 Federal Constitution, which elevated the dignity of the human person (Art. 1, III) as a foundation of the Republic, the understanding was consolidated that honor, even after death, is part of the family's moral patrimony, deserving jurisdictional protection against abuses, defamation, or unauthorized use of image.
Legal and Jurisprudential Provision
The legal foundation is primarily found in the 2002 Civil Code:
- Art. 12, sole paragraph: "In the case of a deceased person, the surviving spouse, or any relative in a direct line, or collateral up to the fourth degree, shall have legitimacy to request the measure provided for in this article."
- Art. 20: Ensures protection of the image, extending to successors the prerogative to prevent the disclosure of writings, the transmission of speech, or the publication of portraits of a deceased person, if they affect their honor or good reputation.
In the scope of jurisprudence, the Superior Court of Justice (STJ) consolidated the understanding through Theme 1184 and several precedents (e.g., REsp 1.879.414/SP), reaffirming that posthumous moral damage is autonomous. The Supreme Federal Court (STF), in a general repercussion ruling (Theme 786), when judging the constitutionality of unauthorized biographies, established that the right to information and freedom of expression is not absolute and must be weighed against personality rights, including the memory of the deceased, prohibiting abuses that violate the dignity of the de cujus.
Related Principles and Divergences
The institute orbits around the principle of Dignity of the Human Person and the principle of Inviolability of Honor and Image. A minority doctrinal current, with a strictly positivist bias, questions the ownership of the right, arguing that death ends personality. However, the dominant current — and the one adopted by the higher courts — supports the thesis of "memory as a legal asset," where protection is provided not for the dead, but for the protection of the dignity of the living who carry the name and honor of the predecessor.
Contemporary Relevance and Practical Impacts
In the digital age, the relevance of in memoriam has reached unprecedented levels. The phenomenon of "digital legacy" and the persistence of data, social media profiles, and intellectual productions after death require a rigorous application of Arts. 12 and 20 of the Civil Code. Current jurisprudence has faced cases of reparation for violation of memory due to offensive publications or unauthorized commercial use of the image of deceased persons, consolidating the thesis that posthumous protection is an ethical and legal imperative for the maintenance of social peace and respect for individual history.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Articles 11, 12, and 20.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Article 5, items V and X.
- STF. ADI 4815 (Rapporteur Justice Cármen Lúcia). Judgment on unauthorized biographies and personality rights.
- STJ. REsp 1.879.414/SP. Rapporteur Justice Nancy Andrighi. Third Panel. Judged in 2021.
- SCHREIBER, Anderson. Direitos da Personalidade (Personality Rights). 5th ed. São Paulo: Atlas, 2023.
