As conseqüências do descumprimento das obrigações à luz do princípio da restituição integral: uma interpretação sistemática e teleológica / Consequences from the noncompliance with the obligations

AUTOR(ES)
DATA DE PUBLICAÇÃO

2006

RESUMO

This paper approaches the consequences from the noncompliance with the obligations arising from articles 389, 395 and 404 of the Civil Code, that impose to the person in delay or in default the duty to pay the losses he/she may cause, or may be replaced with the penal clause or with the guarantees as well as interests, adjustment for inflation and attorney fees. Currently, these consequences cannot be understood, but because of the breaking of the individualist tendencies that have inspired the European legislations of the 19th century, a breaking that results from the sociality and ethicality of the Civil Code of 2002. Therefore, the settlement of disputes arising from the noncompliance with obligations, can no longer solely comprise the will expressed in the contractual instruments, let alone the legal exclusivism that rules in the positive view of law. The old pacta sunt servanda is today limited by social values of public order, considering the social purpose of the norms and the requirements of the common welfare. To such extent, the general clauses of good faith and social function of the agreement arise, applied to the consequences of the noncompliance with obligations, under the light of the principle of full repair, that results from the constitutional guarantee of private property. Because of the guarantees of conservation and compensation, the right to property and, accordingly, the principle of full repair do not permit assets to be unfairly violated, which is affirmed considering the necessary balance that arises from the good faith and social function of the agreement. Presenting the issue this way, the consequences of the noncompliance with obligations, are not exempted from the judicial control: ampliative, to the extent of the effective losses or restrictive, considering the excessiveness. In the first part of the study, aspects related to the assumptions in the noncompliance with obligations were developed, especially delay and absolute default, besides guilt, and causal connection within the scope of obligations. Then, the consequences of the noncompliance with obligations have been reconsidered, in particular losses and damages, interests, adjustment for inflation, attorney fees, without forgetting the penal clause, guarantees and obligations of justice. Finally, after the interpretation of the exclusions of responsibility, the legal content of the principle of full repair which is above the law of obligations was identified

ASSUNTO(S)

direito civil honorários de advogado noncompliance with the obligations culpa danos (direito) -- brasil attorney fees adjustment for inflation atualização monetária cláusula penal inexecução obrigacoes (direito) -- brasil social function of the agreement arise cláusula penal compensatória mora responsabilidade (direito) -- brasil multa cláusula penal moratória penal clause restituição integral dano juros inadimplemento absoluto losses and damages perdas e danos

ACESSO AO ARTIGO

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