Interesse negativo e interesse positivo: subsídios para o ressarcimento do dano pré-contratual no direito brasileiro

• Ano de defesa: 2015
• Autor(a) principal: Fabio Queiroz Pereira
• Tipo de documento: Tese
• 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: Responsabilidade contratual; Contratos; Reparação do dano; Direito civil; Direito - Filosofia
• Link de acesso: http://hdl.handle.net/1843/39351

The present research focused on the study of the notions of negative interest and positive interest and on its pondering for the achievement of appropriate compensation of pre-contractual injuries. It is a legal-theoretic research of the legal-propositional type, which sought to work on the bases of written law, legal authors’ texts and court decisions for the formulation of new frameworks related to the matter. The first step was a conceptual analysis, in which the notions of interest, injury and compensation were reviewed, in order to achieve a semantic unit for the basic premises related to the topic. After that, the research proceeded to a historical outline, justified by the need to find the origins of the modern conception of pre-contractual liability and of the application of negative interest and positive interest. The requisites of pre-contractual civil liability were also examined, and a link between it and the protection of trust and objective good faith was found. It was then possible to demonstrate the existing interface between pre-contractual liability, negative interest and positive interest, in several hypotheses of injury identified in the phase of contract formation. The study of pre-contractual liability in Brazilian Law allowed the conclusion that there is only an incipient protection of those who suffer injuries. Legal texts and court decisions do not present appropriate criteria for the awarding of monetary compensation. Thus, the notions of negative interest and positive interest were discussed as contributions for the pondering of appropriate compensation for injuries suffered in the pre-contractual phase. The absence of a Brazilian legal culture about such notions pointed to the need to suggest its use as an important element for the awarding of monetary compensation. It is also possible that future legislation may adopt the notions expressly as a tort law tool.