THE PROTECTION OF THE PERSONALITY OF THE HUMAN PERSON THROUGH THE INSTRUMENTALITY AND CIVIL LIABILITY OF EXTRAJUDICIAL OFFICES

Abstract

The constitutionalisation of private law, by placing the human person at the centre of the legal order, calls for new institutional arrangements to ensure the effective realisation of personality rights, particularly in situations not covered by express legislation. This article examines whether the 1988 Brazilian Federal Constitution, despite lacking a textually formulated general clause comparable to those of the German and Italian Constitutions, embodies an implicitgeneral clause for the protection of human personality that is enforceable through extrajudicial channels. The hypothesis advanced is that the principle of human dignity (Article 1, III) combined with the open-ended clause of fundamental rights (Article 5, §2) constitutes a general clause capable of grounding the regulatory activity of the National Council of Justice and the State Judicial Inspectorates, as well as the civil liability framework applicable to delegated agents, in the realisation of personality rights. The study employs the deductive method, drawing on bibliographic, normative and case-law research, with particular attention to Theme 777 of the Brazilian Supreme Court. The findings indicate that (i) open-system theory provides the doctrinal foundation for filling normative gaps in matters of personality; (ii) extrajudicial offices, given their territorial reach, permanent judicial oversight and preventive function, qualify as a privileged locus for the realisation of such rights; and (iii) the subjective liability regime of notaries and registrars, coupled with the State's objective liability, strengthens the protection of personality. The article concludes for the existence and operational viability of an implicit general clause, instrumentally enforceable through extrajudicial offices.