Contrato, repersonalização e constituição: a concretização da dignidade da pessoa humana pelo princípio da boa-fé objetiva
AUTOR(ES)
Nadya Regina Gusella Tonial
DATA DE PUBLICAÇÃO
2007
RESUMO
The present study constitutes in an analysis of the principle of the objective good-faith in contracts, on the basis of the biggest value of the dignity of the human being, from a dimension of ethicism brought up by the Democratic State of Right. The Great Letter promoted the constitucionalization of the law spreading its effect on the legal system. As a consequence the repersonalization of the civil law allowed human being to raise to the center of the system. In the contractual law, along with the autonomy of the will, the lines of direction of the sociability, the fairness and the ethicism through respectively, the principles of the social function, its economical balance and the good-faith objective. Because of the repersonalization, the pact started to contain a social utility and to represent a way of promote the guardianship of the confidence, protecting the legitimate expectations of the parts. However, great part of the applicators of the right continues related to a liberal-individualist model that conceives the contractors in an abstract and not historic way, disrespecting the human being and his protection, causing injustice and social inaquality. Therefore, in a constitutional perspective the objective good-faith in contracts is approached, evidencing its functions and having as a theoretical landmark the dignity of the human being, seen under a hermeneutic phenomenology bias, that shows the man as one being in the world revealed for his historical and finite condition. This approach allows understanding the contract as an instrument that makes possible the protection and the valuation of the human being and the construction of a more solidary and fair society
ASSUNTO(S)
repersonalização direito contratual princípio constitucional boa-fé objetiva direito dignidade humana fenomenologia
