The risk assumption in law: a semiotics approach

Abstract

[Abstract] In this article, the notion of accident for Greimasian Semiotics is discussed as proposed by Eric Landowski in his Interactions risquées (2005). The object of investigation includes civil and criminal proceedings and jurisprudence, using accidents that occurred in society as starting points. Semiotics conceptualization of accident includes the unpredictability, chance and risk lexemes. Thus, the main objective of this work is to verify how these elements are understood and assumed by the Judicial Area, as in jurisprudence, in civil and criminal proceedings. In other words, the objective of this paper is to investigate whether (or how) unpredictability, chance and risk constitute an integral part of the fiduciary contract between the sender and the addressee. In regards to this issue, there is in Law, two opposing principles: pacta sunt servanda and rebus sic stantibus. In the former, the judge rules that unpredictability be assumed by the party to contract and determines that the unpredictability burden must be assumed by the party to contract. In this case, unpredictability is part of the fiduciary contract between the sender and the addressee. In the latter, the judge rules that unpredictability should not be assumed by the parties to hire: it does not belong to the fiduciary contract. For Semiotics it is important to know how the accident and its unpredictability are understood and assumed differently by the Judiciary. Therefore, the objective here is to explain how the judicial area conceptualizes and understands risk, the random element and the accident. This is fundamental for a deep understanding and the development of reflections on the accident regime proposed by Eric Landowski.