Contornos do inadimplemento absoluto, da mora e do adimplemento substancial: principais características e distinções
AUTOR(ES)
Lucas Gaspar de Oliveira Martins
DATA DE PUBLICAÇÃO
2008
RESUMO
Inspired by the new vision of the phenomenon of the obligation, attributing to it values and ethics regarding the non-execution of the obligation, this work covers conceptual aspects of default, material breach and substantial performance, its fundamental distinctions and correlated institutes. In addition to resuming the valuable traditional legal teachings, it sough a new reading of these instituted in light of the Civil Code. The study started from the general notion of the concept and modalities of breach of contracts. After exhausting this stage, sought to form an opinion about the institutes of material breach and default, differentiating them in their most relevant aspects. After presenting the grounds for these types of default of obligations, sought to position a legal institute originating from the common law system, namely substantial performance, as of its historical origin and its construction in foreign Law. In this scenario, sought to justify the development of this theory as of the application of the principle of good faith as a rule for limitation of the exercise of the subjective right of termination of contracts, in order to impose greater justice and a certain limitation regarding the configuration of default, expanding the possibilities of maintenance of the contractual relationship in the events in which a minimum default of the obligation agreed is verified. Next, sought to deepen this institute, as of its functional specializations, the criteria for the correct assessment of the seriousness of the breach and its concreteness events, exemplified by the jurisdictional activity developed by the Brazilian Judiciary. All, at last, to have technical and theoretical conditions to establish the distinctive outlines between this theory and the correlated figures presented above, comparatively individualizing that institute to default and material breach, in addition to other institutes of the Brazilian contracts Law, such as defective performance, partial default of dividable and undividable obligations, partial impossibility, as well as unjust enrichment, with the primordial scope to find more positive consequences, in light of the verification of default, which gives prestige to the new reality of contracts and frees it from the ties of contractual termination
ASSUNTO(S)
mora (direito) -- brasil direito civil obrigacoes (direito) -- brasil adimplemento e inadimplemento -- brasil contratos -- brasil
