A aplicação das teorias revisionistas na revisão judicial de contratos no Brasil: uma análise a partir da disciplina do código civil e do código de defesa do consumidor

• Ano de defesa: 2007
• Autor(a) principal: Oliveira, Rodrigo Navarro de
• Orientador(a): Facchini Neto, Eugênio
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul; Porto Alegre
• Palavras-chave em Português: DIREITO CIVIL - BRASIL; DIREITO DO CONSUMIDOR - BRASIL; CONTRATOS - REVISÕES
• Link de acesso: http://hdl.handle.net/10923/2375

From the study of the evolution of the juridical matter of the contracting in the Law history, and the contractual principiology, this study is aimed at identifying the main revisionist theories of agreements, analyzing the hypotheses, the conditions and the purposes of their apllication within the Brazilian legal system, in view of the normative principles that regulate the agreement revision inserted within the Civil Code and the Consumer Protection Code. In the current agreement principiology, there is the relativization of the traditional agreement principles - concerninf the freedom of contracting; the compliance with the agreement; and the relativity of the reflexes of the agreement - of which application is conditioned bye the new contractual principles of objective good-faith, of the economic balance of the agreement and the socila function of the agreement. The freedom of contracting and the obligatoriness of the compliance with the contractual responsibilities are limited by the state intervention that takes place in the regulation of the social and economic order, in the control of the content of the contractual clauses and in the legal review of agreements. Several theoretical constructions can be apllied in order to provide support to the legal review of agreements, either because of the existence of certain causes by the time the contractual bond is established, or because of supervening changes of contractual circumstances. In Brazil, the application of the unforeseen theories is highlighted, as well as the excessive burdens and the objective basis of the legal matter. The application of the revisionist theories in a larger scale shoes the prevalence of the jurisprudence and doctrinarian trend that is directed at the preservation of the agreement, as opposed to the possibility of termination of the contractual bond. The legal revision of agreements may ensure the efficiency of essential rights, as it enables social justice and social solidarity principles to become concrete. The construction of agreements must be informed by the objective good-faith principle and it must be aimed at the reestabilishment of the balance of the legal relationship, leading to the contractual justice. In the judicial integration process, the objectives and purposes of the agreement aimed by the parties to the contract must be equally taken into account, and individual and social values must be assessed, in order to allow the compliance with the social purpose of the agreement.