O controle funcional da denúncia contratual e o dever de pré-aviso

• Autor(a) principal: Viégas, Francisco de Assis Wagner
• Data de Publicação: 2018
• 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/1/19027
• topic: Contracts; Contracts; Termination by notice; Objective good-faith; Reasonable length; Contratos; Denúncia; Resilição; Boa-fé objetiva; Pré-aviso; CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This study aims to analyze the termination by notice in contracts with continuous or periodic performance when the contract has an indefinite term. From the conceptual definition of the termination by notice within the law of contracts, the study identifies the type of contracts that allow this kind of termination. The legal reasons for the right to terminate the contract regardless of any default or imbalance in the contractual relationship is also investigated. The next step is to verify the possibility of limitation, in teleological perspective, of the right of termination by notice, considering the fact that it is a right that can be exercised regardless of any motivation and does not need any action by the other party of the contract in order to be effective. It is argued that it is possible to control the legality of the termination by notice based on the principle of objective good faith and, in some cases, on the principle of the social function of the contract. This legal control operates by time constraints to the exercise of the right of termination, as established by article 473, sole paragraph, of the Brazilian Civil Code. The interpretation of this rule can lead to two obligations imposed on the party who wishes to terminate the contract: (i) termination cannot be exercised before the minimum duration of the contract, necessary to achieve its economic scope; (ii) the party who wants to terminate the contract must give a reasonable period of notice to enable the other party to prepare for the termination of the contractual relationship. Both constraints are evaluated at the same time – as the termination is exercised by one of the parties –, and it is important to develop material criteria for the judge to stablish what is the minimum duration of the contract or what is the reasonable length of the notice. After verifying the reasonable period to be observed by the party who pretends to terminate the contract, the study stands for the possibility of complying with the obligation to grant a reasonable period of time by paying the amount that the other party would receive if the contract were to be performed by the due time. This amount includes the income (not the profit) that the party would have during the reasonable period for which the contract was to be performed. However, if there is a default of the obligation to give reasonable time before terminating the contract, the aggrieved party can ask for the judicial extension of the contract for the reasonable period, except when the party who terminated the contract proofs that the extension is impossible or an absolutely unreasonable remedy. In either case, the remedy of judicial extension of the contract will be considered necessary if the sudden termination affects human rights or society collective interests.