Abuso do direito nas relações obrigacionais / Abuse of right incidence in obligational relations
AUTOR(ES)
Keila Pacheco Ferreira
DATA DE PUBLICAÇÃO
2005
RESUMO
The constitutional authorization for the entire economic activity and the free initiative is structured, fundamentally, on the basis of contractual relations. Contracts are juridical instruments which enable the circulation and mobility of the present day economy. This fact denotes that this institute, besides meeting the interests of the parties in contract, has a transcendental nature, by reaching the entire economic and social system in which it is inserted. In view of this fact, the topic we are proposing to study herein takes on an added importance. The analysis of the abuse of right incidence in obligational relations, in the current Brazilian juridical context, presents itself as a useful instrument for the attainment of contemporary ethical and social values, by indicating limits for the undertaking of business activity, in keeping with the innovative paradigms established in the Civil Code of 2002, previously crystallized by the Federal Constitution of 1988. In harmony with this new juridical-axiological plexus, the abuse of right assumes renewed characteristics, and emerges with a great transforming potential, committed with the ideal of social justice and the promotion of the dignity of human beings, as announced in chapter one of this dissertation. Chapter two is designed to analyze the dogmatic construction of the abuse of right theory, by demonstrating the evolution of doctrinaire conceptions that deal with the subject, the reasons that justify its autonomy, and the reception suffered in foreign law. The historical-social and political transformations that justify alterations in the methodological orientation for the analysis of contemporaneous private law, and their impact with respect to the abuse of right, will be addressed in chapters three and four. The discussion proceeds enunciating, in chapter five, the abuse of right in brazilian legislation and its application sphere. The chapter six deals with the delimiting criteria of the abuse of right within contractual liberty. Lastly, chapter seven demonstrates the incidence and operativity of the abuse of right in the complexity of obligational relations
ASSUNTO(S)
direito civil cláusula geral autonomia privada limites à liberdade contratual boa-fé relações obrigacionais socialidade eticidade abuso de direitos direito privado
