A reparação de danos na responsabilidade por ruptura injustificada das tratativas: entre o interesse negativo e o interesse positivo

• Autor(a) principal: Glatt, Michel
• Data de Publicação: 2023
• Outros Autores: [e-mail]
• 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/1/21042
• topic: Responsibility for breach of preliminary negotiation; Damage reparation; Positive contractual interest; Negative contractual interest; Responsabilidade por ruptura das negociações preliminares; Reparação de danos; Interesse contratual positivo; Interesse contratual negativo; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This dissertation presents analysis to the reparation of damages in responsibility for the unjustified breach of negotiation and in particular, should it be attainable within the scope of Brazilian Law, victim compensation for the positive interest, under certain hypotheses. The doctrinaire development of culpa in contrahendo originates from the studies of Rudolf von Jhering, who proposed the protection of the injured party for the wrongful performance of the counterparty within the formation of the contract. Currently, with recognition of the obligation as a process, and in view of the relevance assumed by the principle of objective good faith, pre-contractual liability has undergone new assignment thus assuming protagonism with an emphasis to protect against the breach of negotiation, in relation to securing the alter’s legitimate interests. Consequently, the breach of negotiation, as a rule - been authorized by the freedom to contract - can be considered abusive, this due to the context, which engenders the responsibility of the agent, based on the protection of trust. Within such cases, an understanding prevails that compensation solely covers the negative interest – to usher a victim back to the state in which he would have been, had he not entered into the negotiation –, and conversely, not the positive interest, which seeks to elevate the injured party to a situation in which he would have been rewarded. However, based on the examination of the subject by the means of methodology of civil-constitutional law and, specifically when considering the assumptions that affirm the historicity of the institutes and the predominance of their functional profiles over the structural realm, and considering the transformation via which contractual formation processes have passed over the passage of time, and the dynamism and complexity involved within negotiation, it is therefore essential that the identification of the interest to be repaired observe the specific hypothesis, this in light of the singular interest deserving of protection, thus proving to be inadmissible within the concept of an a priori solution.