Adimplemento substancial

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

The present thesis, entitled Substantial Performance aims at looking into the legal doctrine which stems from the Contracts Law within the Common Law, as an opening pathway for valuing the real extent of nonperformance of duty, viewed nowadays with equal criteria and closer to legal practice reality that arises from either bilateral or multilateral legal contracts. The conducted research was concerned with the assumption that the fundamental breach that always yielded the existing contract dissolution found in both foreign and national legal systems could be changed into a more positive view of the result arising from different forms of breaches, using as a reference the aspect of the resulted scarce importance of partial nonperformances of duty. The recognition of this concept in foreign countries has come a long way, also existing in some countries where it can be seen in their codifications. On the other hand, its adoption by the Brazilian legal system has been the subject of jurist Clóvis do Couto e Silvas work as imminent fruit of the revolution experienced within Contracts Law, a phase in which it is demanded that the fundamental breach configuration be limited, broadening the possibilities of maintaining contract adherence before the nonperformance of lesser significance. In this scenario, the construction and development of the substantial performance Theory was justified when the objective principle of good faith that valued more strictly and fairly the proportionate share of the nonperformed duty was applied in relation to the whole of the contract already paid by the defaulter. With this valuing, the system became flexible to accept the hypotheses in which, once the creditors interests were maintained at the largest proportion of the contract already offered, the benefit arising from most of the installment would deem the contract as good, thus voiding contract dissolution. This shift in contract dissolution generated positive results at the same time it allowed for debtors court protection and in return such shift maintained the equilibrium and the parties conflicting interests by meeting the requirements of substantial performance. This was a positive phenomenon highlighted in several contract species, as well as through jurisdictional activity performed by the Brazilian Judiciary Branch

ASSUNTO(S)

adimplemento e inadimplemento -- brasil substantial performance direito civil contratos -- rescisao -- brasil adimplemento substancial adimplemento e inadimplemento

ACESSO AO ARTIGO

Documentos Relacionados