Mitigação de danos pelo credor: fundamento e perfil dogmático

• Ano de defesa: 2016
• Autor(a) principal: Gagliardi, Rafael Villar
• Orientador(a): Nanni, Giovanni Ettore
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica de São Paulo
• Programa de Pós-Graduação: Programa de Estudos Pós-Graduados em Direito
• Departamento: Faculdade de Direito
• País: Brasil
• Palavras-chave em Português: Danos; Responsabilidade civil; Mitigação
• Palavras-chave em Inglês: Damages; Civil liability; Mitigation
• Área do conhecimento CNPq: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: https://tede2.pucsp.br/handle/handle/18871

The purpose of this work is to investigate whether the conduct of one of the parties, referred to as creditor, once the counterparty, referred to as debtor, has committed a contractual breach, is in anyway relevant for the purposes of defining the indemnification to be ultimately awarded to the former or if, on the contrary, such conduct is absolutely irrelevant to the mentioned purpose. It aims to identify if Brazilian Law encompasses the notion according to which it is expected from the creditor to act reasonably to mitigate the losses flowing from the breach attributable to the debtor. The starting point of the investigation lies in the finding of transformations in Private Law, especially in the field of civil liability, in the restatement of the values that constitute the axiological chart that must inspire the exercise of rights, prerogatives or legal positions and the growing role played by the principles of solidarity, sociality, ethicalness, activity, goodfaith and the social function of contracts. From there, a solid foundation is built on which a theory of mitigation of damages may rest, making it possible to find the justification and the legal grounds that allow the insertion of the rule of mitigation into Brazilian Law. Once the justification and the legal grounds are identified, the legal requirements for the rule of mitigation of loss to apply are analyzed, as well as the effects resulting from the conducts of the creditor who fails to mitigate the losses flowing from the breach of contract, the one who does act to mitigate the loss, and in this case, both the situations where mitigation is successful and the situations where it is not. The treatment to be given to expenses borne by the creditor when acting to mitigate the loss flowing from the breach is also covered, as well as the parties ability to deal with mitigation in contracts and the procedural aspects of the matter, namely allocation of the burden of proof and the (im)possibility of the adjudicator ruling on the matter without it being properly raised