Neurodireito e tomada de decisões no Direito Privado: negócios jurídicos baseados em evidências

• Ano de defesa: 2020
• Autor(a) principal: Ludmila Junqueira Duarte Oliveira
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; Brasil; DIREITO - FACULDADE DE DIREITO; Programa de Pós-Graduação em Direito; UFMG
• Palavras-chave em Português: Direito Privado; Negócios jurídicos; Tomada de decisão; Arquitetura da decisão; Estímulos comportamentais (nudges); Neurodireito; Direito privado; Processo decisório; Atos jurídicos; Defesa do consumidor
• Link de acesso: http://hdl.handle.net/1843/34096

In this dissertation the author aims to analyze how the evidence produced by the Cognitive Sciences about human decision making influenced the regulation of contracts by Private Law in Brazil. It is also intended to propose mechanisms that would make it possible to improve the legal response to these findings on decision making and contribute to improve the celebration of contracts. Decision-making is adopted as a theoretical framework, understood as the cognitive process of selecting an option among several alternatives. The author seeks to demonstrate that some social sciences, such as Economics and Law, are based on normative models of decision making, based on abstract concepts of rationality. It is proposed, instead, the adoption of descriptive models of decision making, which portray how deliberations arise in real contexts, guided by the tendencies to think (and decide) automatically, socially and with mental models. This new evidence on decision making is already being used in some fields to improve studies and results, such as in economics and in the development of public and health policies. In the legal field, it has already been proposed to unite in the cross-disciplinary field called Neurolaw the studies of Cognitive Sciences to support the review of the foundations and dynamics of legal institutes. In order to investigate whether the codifications offer satisfactory answers to the challenge of incorporating new evidence on decision making, this dissertation carries a comparative examination of the regulation of contracts in the Civil Code, centered on the requirements of validity and defects of contracts, and in the Consumer Protection Code. The author seeks to demonstrate that the Consumer Protection Code already offers more adequate mechanisms to respond to the discoveries, as it departs from the idealized view of the individual as being self-sufficient and fully rational in recognizing the vulnerability of the consumer. Among the new tools adopted by the Consumer Protection Code, the interventions suggested by Richard Thaler and Cass Sunstein, nicknamed nudges, will be highlighted. These are choice architecture mechanisms and behavioral stimuli with great potential to allow Private Law to make good use of new discoveries about decision making. The author will present the main characteristics of the technique, face some ethical objections to its use, and also present possible nudges in the area of Private Law, which could be object of study in Neurolaw. In conclusion, it will be stressed the convenience that the regulation of contracts is informed by scientific evidence on decision-making processes. The methodology follows the interdisciplinary feature of the theme, which seeks to integrate legal knowledge with those from the Cognitive Sciences about decision making. It is a theoretical research, developed based on the review of the existing literature on the subject in Brazil and on English-language texts.