La protection des profissionnels contre les clauses abusives: Comparaison franco-brésilienne

• Autor(a) principal: Pereira, Fernanda Sabrinni
• Data de Publicação: 2017
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9198
• topic: Private law; Contract law; Unfair terms; Professionals; Comparative law; Powers of Judges; Sanctions; Effectiveness of norms; Consumer law; Direito privado; Direito contratual; Clausulas abusivas; Empresários; Direito comparado; Poderes do juiz; Sanções; Eficácia da norma; Direito do consumidor; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The present thesis is about the protection of professionals against unfair contract terms. While at first glance, one would expect that such protection seemed to be in favor of consumers, it is no longer the case nowadays in many legal systems. In fact, if one considers the ratio legis of such protection, it seems discriminatory to reserve its benefits only to consumers. The impossibility to negotiate the contract, caused by the economic inequality between both parties, as well as the risk of unfair imbalance that results, conducts the legislator to give to the judge the power to declare unwritten the so-called abusive clauses. These two factors arise to professionals which are economically dependent upon the contracting party : this dependence will suppress any force over the negotiation of contract terms that the consumer may have. Consequently, some countries like France and unlike Brazil, have implemented a protection of professionals against significant imbalances. None of these protection systems may claim to be perfect. Thenceforth, the present comparative analysis will reveal the strengths and weaknesses of both French and Brazilian laws, and thus to better propose a recast of the protection granted by these two countries to professionals against unfair contract terms