A responsabilidade civil pré-contratual por rompimento injustificado / Pre-contractual liability by the injustified termination

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

The main purpose of this dissertation thesis is to analyze pre-contractual liability arising out of breach of objective good faith during proceedings or other preliminary negotiations, at a stage prior to the formation of the actual contract. The culpa in contrahendo doctrine, as pre-contractual liability is known in Germany, was formulated by Rudolph Von Jhering in 1861 and was developed in that country based on social contact, on the doctrine of reliance and on Treu und Glauben, the latter conveying objective good faith, which is a faithful and honest standard of conduct to be adopted by parties during preliminary negotiations. European and Brazilian codifications accepted pre-contractual liability late in time under the argument that the damage caused by a null or void contract and by the unjustified or arbitrary termination of preliminary negotiations did not require any specific ruling in view of the existence of the neminem laedaere principle. Since the overall duty of not injuring others did not protect the specific duties arising out of objective good faith during the stage of proceedings or preliminary negotiations, a large limitation of scope of this principle was observed. In view of the lack of protection of such duties, the pre-contractual liability theory was thus constituted. Trust is the value protected in pre-contractual liability, and it is the key element expected from individuals interested in contracting. Should an unjustified breaking off occur during the stage prior to the formation of the contract, the party damaged by frustration of its legitimate expectation arising from the trust placed in the other party is entitled to claim compensation for the expenses incurred with regard to the future formation of the contract. Therefore, in the face of mitigation of contractual liberty by means of private autonomy with the scope of not allowing any injury to human beings, pre-conceptual liability has become a most significant issue. Today, it is supported by the principle of objective good faith, as a corollary to the Law in search of human dignity in social relations

ASSUNTO(S)

direito civil pre-contratos -- brasil pre-contratual contratos -- brasil responsabilidade responsabilidade (direito) -- brasil pre-contractual liability

ACESSO AO ARTIGO

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