Cláusula penal: uma releitura de acordo com o novo direito civil que se constrói

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This paperwork aims to establish a critical review around the penalty clause regulation, in order to suit it to the social reality we live in, so that we can reach a systematization of its rules in the constitutional principles perspective, of the informative principles contained in the Civil Code in force, of the Case Law, of the national and foreign doctrines, as well as the statements approved by the Federal Justice Council. This research is due to the innumerous existing doubts concerning the meaning and application of the penalty clause regulation in the contemporaneous Civil Law, generating several practical problems, which allow its abusive usage contrary to its main objective. The main assumptions to be considered are based upon the following issues: wouldnt it be peremptory that the penalty clause be necessarily re-read under the constitutional principles of human dignity, social solidarity and the fundamental rights equality? Do penalty clause concepts found in our doctrine consider all indispensable elements for their establishment? What is the penalty clause function after all: to punish, to reinforce contracts fulfillment or to prefix losses and damages? How can the possibility of the penalty clause equitable reduction be understood due to the existing abuses in the contractual relations? Is there any connection between the penalty clause and the contractual civil liability? How could we adequate the possibility of demanding a supplementary indemnification, in case the penalty clause is insufficient to compensate losses and damages concerning the reality of adhesion contracts, insofar it depends on express provision? How could the problem of the risible penalty clause that adversely affects the adherent in the adhesion contract be solved? What are the general relevant aspects of the penalty clause? How could we solve the conflicts established by the penalty clause in condominiums and in lease agreements of urban real properties? How could we confront the penalty clause with special laws? What are the figures similar to the penalty clause, but that cannot be confused with it? The methodological choice adopted in this paperwork is based on the theoretical and methodological line, as well as the legal- dogmatic, counting on incursions of theoretical and sociological nature once internal elements of the legal system will be taken into account, searching for its full understanding according to the existing doctrine reflections. The results obtained point out to a general theory about the penalty clause confronted with our social, political and ideological reality and sustained on a constitutional civil interpretation

ASSUNTO(S)

civil-constitutional interpretation direito civil interpretação civil-constitucional direito civil -- brasil cláusula penal constitutionilizing of rights constitucionalização dos direitos fundamental rights civil law direitos fundamentais penalidades contratuais -- brasil direito civil penalty clause constitutional principles princípios constitucionais

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