Animals of Estimation node Right Brazilian

According to data collected by IBGE and updated by Instituto Pet Brasil, in 2018, there were 54.2 million dogs, 23.9 million cats, 39.8 million birds, 19.1 million fish and 2.3 million reptiles and small mammals in the country. reaching a total estimate of 139.3 million pets(GERALDES, 2019). With so many pets in Brazil, the question arises: how does the law view animals? How are they treated by law?

Pets have increasingly gained connotations of family members, as opposed to the idea that they are simply human property. The idea of Animal Law is also emerging, which would be a set of rules and principles that establish the fundamental rights of non-human animals, considered in themselves, regardless of their environmental or ecological function (ATAIDE JUNIOR, 2018, p. 50).

The Universal Declaration of Animal Rights, of January 27, 1978, of which Brazil is a signatory, considers that every animal has rights and should not be subjected to mistreatment and cruel acts. It also determines that animals have the right to live and grow according to the rhythm and conditions of life and freedom that are specific to their species.

The Federal Constitution, in its article 225, section VII, establishes that fauna and flora must be protected, and practices that put their ecological function at risk, cause the extinction of species or subject animals to cruelty are prohibited.

The Civil Code, in its article 82, understands animals as “things”, determining that “Goods capable of self-movement, or removal by external force, without altering their substance or economic-social purpose, are movable”. By reading articles 445, §2; 936, 1444; 1445 and 1446 we also come to the conclusion that the legislation understands the animal as mere human private property.

Although there is a wide range of legal protection mechanisms for animal rights, not limited to those mentioned here, the Civil Code maintains that animals are "things." Until a law changes this, Brazilian courts have made important decisions opposing this objectification.

In an important decision, the Superior Court of Justice (STJ) understood, in the ruling that judged REsp 1713167 (2017/0239804-9 of 10/09/2018), that Companion animals have a unique and peculiar subjective value, bringing out very intimate feelings in their owners, totally different from any other type of private property.

According to the decision, companion animals are beings that inevitably have a special nature and, as sentient beings – endowed with sensitivity, feeling the same pains and biopsychological needs as rational animals – their well-being must also be considered.

The ruling also highlighted that it must be away any claim that the discussion involving the family entity and its pet is minor, or that it is mere futility that unnecessarily takes up the Court's time.

This way, highlighted the jurisdiction of the Family Courts to analyze the dispute, and upheld the original decision that the dog, which had been acquired during the stable union, should be kept between former partners and also delimiting visitation rights.

In European countries, the trend is toward the "de-objectification" of animals (SOUZA, F., SOUZA, R, 2018). In Austria, in 1988, the country's Civil Code was amended to expressly provide that animals are not things and that they are protected by special laws (SOUZA, F., SOUZA, R, 2018). In 1990, the German Civil Code adopted a provision identical to that of Austria. In 2003, Switzerland amended its legislation along the same lines (SOUZA, F., SOUZA, R, 2018).

In 2011, the Netherlands implemented obligations related to animal health and welfare (SOUZA, F., SOUZA, R, 2018). In 2015, the French Civil Code began to provide that animals are living beings endowed with sentience, and that, subject to the laws that protect them, they are subject to the property regime (SOUZA, F., SOUZA, R, 2018). Furthermore, in 2016, Portugal created a third legal entity in addition to persons and things, understanding animals as living beings endowed with sentience (SOUZA, F., SOUZA, R, 2018).

BIBLIOGRAPHICAL REFERENCES

ATAIDE JUNIOR, Vicente de Paula. Introduction to Brazilian animal law. Brazilian Journal of Animal Law, Salvador, v. 13, n. 3, p. 48-76, Sep./Dec. 2018. Available at: https://portalseer.ufba.br/index.php/RBDA/article/view/28768/17032. Accessed on: May 5, 2021.

GERALDES, Daniel. Pet Census: 139.3 million pets in Brazil. Stilo Editora, São Paulo, 2019. Available at: https://www.editorastilo.com.br/censo-pet-1393-milhoes-de-animais-de-estimacao-no-brasil/. Accessed on: May 5, 2021.

SOUZA, Fernando Speck de; SOUZA, Rafael Speck de. The legal protection of animals in contemporary civil law. Legal Consultant, São Paulo, 2018. Available at: https://www.conjur.com.br/2018-jun-04/tutela-juridica-animais-direito-civil-contemporaneo-parte. Accessed on: May 5, 2021.

STJ. RESp 1,713,167/SP. Rapporteur Min. Luis Felipe Salomão. J. 06/19/2018.