Análise jurídica e econômica da função social do contrato

• Autor(a) principal: Lemos, Raphael Abs Musa de
• Data de Publicação: 2023
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/39285
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Função social do contrato; Negócio jurídico; Liberdade contratual; Liberdade econômica; Social function of contract; Legal transaction; Freedom of contract; Economic freedom

The present work aims to investigate the social function of contract, from the preponderant hermeneutic Brazilian position, which designs it as a solidarist provision, which gives occasion to the social justice of the particular case, able to facilitate the equalization of the parties and to substantiate the revision of the reciprocal obligations by the State. In this regard, it is asked if the prevalent point of view meets a plural constitutional economic order, adaptable and circumstantial, as well as the necessities from the economic reality in which the private agents are inserted. For this purpose, it is outlined as overall goal to analyze the social function of contract from the political, philosophical, sociological, economic, and legal bedrocks, revisiting it from the different perspectives granted by the social sciences, with the intent to contribute for the legal debate with new arguments in defense of the interpretation that takes into account the harmonic exegesis with the constitutional order and with the provisions laid in the Civil Code. The reasoning developed in this research passes by the analysis of the literature, the case law, and the legislation previous and succeeding the changes promoted by the Economic Freedom Act, with its consequent reflections to the contractual disputes. Furthermore, it is sought similar dogmatic categories in the foreign law to ponder levels of proximity with the Brazilian principled norm. Given these considerations, it is concluded that the true function of contract is its economic function, which has the purpose of serving as an allocative instrument for scarce resources, according to the free decision of private agents, who participate in a mutually beneficial contractual relationship, in which both will be lifted to a more advantageous situation. Therefore, the social function of contract, whether understood as a distributive norm whether as a provision of internal and external dimensions, due to its inaptitude to rule harmonically all the legal relations of private Law, must be revoked from the Brazilian legal order, being replaced by its economic function as a general clause. Furthermore, the social function as norm of solidarity deployment among private individuals and the collectivity disseminates precariously and insecurely a statal morality burden upon legal transactions, which should be better carried out by the ethical grounds arising from the objective good faith, technically applied in accord with the particular factual circumstances