Duty to mitigate the loss no direito civil contratual brasileiro

• Autor(a) principal: Almeida, Danilo Nogueira de
• Data de Publicação: 2017
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/33803
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL; Duty to mitigate the loss; Contratos; Responsabilidade civil; Perdas e danos; Razoabilidade; Boa-fé objetiva; Duty to mitigate the loss; Contracts; Civil Liability; Tort law; Losses and damages; Reasonableness; Good-faith

The duty to mitigate the loss is a legal institute originating from the legal system of Anglo-Saxon countries based on common law, and is considered as a rule of law that brings adverse consequences to the creditor who fails to take measures aiming to prevent or reduce the loss deriving from tort or breach of a contract by the other party (the debtor). As a consequence of this legal rule, such a creditor will not be entitled to claim damages regarding the loss that could have reasonably been avoided on his/her own initiative. Whereas in the event of the creditor having acted in accordance with the mitigation rule, he/she will be entitled to recover from the debtor all expenses incurred with the purpose of mitigating, with reasonable efforts, the damage that has been suffered. Such legal rule has been frequently recognized and used in Brazilian private law, notably since the publication of academic journal articles on the subject, and also since the rise of Statement No. 169 from 3rd Civil Law Convention of the Council of Federal Justice, followed by relevant precedents from several Brazilian Courts. Based on these premises, this study aims to deal with the subject of the mitigation rule with an approach towards its origin and insertion in our legal system, legal nature and framework according to Brazilian law, and also its legal basis. In this field, it has been found that the mitigation rule should be considered as legal burden to be borne by the creditor, deriving from goodfaith and its role of limiting subjective rights. At last, this study also deals with various issues concerning practical implementation of the rule and its legal confrontation with other correlated institutes