Cláusulas abusivas: o reconhecimento da abusividade do dispositivo contratual mediante o juízo de merecimento de tutela

• Autor(a) principal: Rodrigues, Luiz Eduardo Lima
• Data de Publicação: 2014
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9787
• topic: Worthiness of judicial protection; Unfair terms; Juízo de merecimento de tutela; Cláusulas abusivas; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

Heavily inspired by the ideals inherent to the Classical Liberalism, methodological schools were developed throughout the nineteenth century with significant effect also in the twentieth century. These veryl schools adopted, as an hermeneutic premise, an excessive valuation of private autonomy and the binding of contracts. These assumptions justifying the prospect through which the intervention of the judge in the content of the adjustment would not be admitted are conventionally termed as the dogma of the intangibility of the contract. Gradually, a number of social, economic, political, cultural and legal changes demanded a distinct attitude of the state, which now intervenes directly in the economy, whether performing activities so far exclusively intended for private initiative or by drafting laws related the contractual sphere, limiting private autonomy. Such limitation for private autonomy, however, was performed in an exceptional way. In this context, the enactment of Law No. 8078/90, Code of Consumer Protection, notably in relation to the provision of unfair terms, represented decisive overcoming of the intangibility dogma of the content of the contract. Although it consists of considerable progress with regard to contractual protection of vulnerable contractor, it appears that, given the myriad of legal situations subject to the rule of consumer legislation, the solutions advocated by an overly formalist hermeneutics are insufficient to safeguard the existential interests of the human being. In this context, the judgment of protection worthiness plays a role of fundamental importance for the effective protection of the values established by the legal system taken as a whole.