"A evolução do conceito de contrato", desde a pós-revolução francesa ao seu desenvolvimento e acabamento atual

• Autor(a) principal: Lança, Ana Francisca Vieira Spínola e
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/162378
• topic: Autonomia privada; Direito Civil Constitucional; Direito dos contratos; Historicidade e direito; Revolução Francesa; Constitutional civil law; Contract law; French Revolution; Historicity and law; Private autonomy; Direito

Like any other invention of Man, contracts have also undergone modifications due to a social, economic and technological development that accompanies us on a daily basis. However, it is a certainty to state that there is no legal institute which has been maintained for so long and which, nowadays, continues to adapt to the constant changes and alterations than the contract. As a result of these evolutions, also called as “the new economy”, we begin to feel some of its effects. For instance, an increasing concentration of companies, industries and commerce, which has discouraged global competitiveness. However, this strengthening of dominant position must, a posteriori, be combated through concentration operations and institutes such as consumer protection. It is therefore understandable that today, more than ever, there is a need, in accordance with the law, and in order to acquire, transfer, preserve, modify or extinguish rights, to make the economy subordinate to ethics, and make sure the will between the parties is respected by legal rules in order to ensure the fulfilment of an obligation and to protect the weaker party. Economic development must be carried out in a rational way, while safeguarding rights. We thus refer to the notion of contractual freedom, the basic idea underlying the principle pacta sunt servanda (article 406.º of the Portuguese Civil Code), where the real will of the person expressing it is sought to coincide with the declared will (under the terms of article 236.º of the same diploma). The present text seeks to know this evolution, thus dealing with the historical concept of contract, due to the need of understanding the contemporary value of (contractual) agreements for society. An attempt is made to remember the time when Man stopped resorting to force and violence to attain his goals, but rather started attributing stability to the legal relationships he agreed upon according to his own principles and assumptions. And, although it is not precisely known when and where the contract originated, the discussion is currently over. In order to answer these questions, a timeline was created and the Law of Contracts was finally created. In the beginning, French Law will be adopted, as the genesis and diffusion of a model that exerted great influence on the countries that based themselves on the Civil Code, of which Portugal was a part. At a later stage, the concept of contract will be analysed in the context of the Liberal State, the Social State and, finally, the Democratic State of Law. All this to understand whether the current concept of contract reflects the dictates of the Democratic State of Law or not.