A racionalidade econômica como critério de interpretação contratualartigo 113, §1º, inciso V, do Código Civil

Resumo

This work aims to understand the dogmatic structure, theoretical concerns and jurisprudence on the "economic rationality ofthe parties", provided for in item V of paral of article 113 of the Civil Code, introduced by the Economic Freedom Law (Law no. 13,874/2019). The topic is relevant because it innovates the contractual legal tradition. The research examines how institutional interpretation (judge or arbitrator) can infer "reasonable negotiation" by improving contractual regulations (ambiguiry, contradiction, obscuriry and inaccuracy) without substantially rewriting it. A bibliographical review was carried out, including law and economics literature, and jurisprudence research from the Superior Court of Justice and the Court of Justice of the State of São Paulo. The dissertation is divided into four chapters. In the first chapter there is a review of the literature on the dogmatics of contractual interpretation and heteronomous supplementation. The second chapter addresses the economic theory of the incomplete contract and the normative expectations of contractual risk allocation. In the third chapter, the legal category "economic rationaliry of the parties" is examined as an empirical conjecture and as a methodological principie for the infcrence of "what would be the reasonable negotiation of the parties" coherent with the economic operation underlying the contract and consistent with the distribution of risks of the parties inferred from the narure of the business (type or socially typical), its object (economic-social function) and the circumstances of the contractual relationship to achieve the end of the contract (concrete cause). The last chapter presents the cases selected from the jurisprudence research that adhere to the adopted criteria. Factors are suggested to control the judge's discretion: (a) necessity, (b) coherence, (c) consistency and (d) consideration of practical-legal implications. It is recommended that contracting parties: (a) use a preamble or "recitais" to clarify substantial elements of the economic operation; (b) highlighting a controversial clause in the decision, in addition to the legal assessment of certain facts, to optimize access to justice with the potential control of the rule's negation of interpretation by the Court. The research contributes to the understanding of the normative burden attributed to the "economic rationaliry of the parties" by the still incipient literature and jurisprudence. The findings of jurisprudential research reveal the application ofthis legal category: (a) to ratify the literal meaning of contractual clauses; (b) as a supporting basis for another normative provision, especially objective good faith; (c) to determine the meaning given the concrete purpose of the contract, capturing a potential economic value of the adjustment referring to the allocation of risks attributable to the contracting parties.

Ficha do documento

Tipo

Dissertação

Ano

2024

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/35666

Palavras-chave

Interpretação do contratoRacionalidade econômica das partesRazoável negociaçãoContrato incompletoFinalidade do contratoArt. 113, §1º, VInterpretation of the contractEconomic rationaliry of the partiesReasonable negotiationIncomplete contractPurpose of the contractDireitoContratos - BrasilHermenêutica (Direito)Brasil. [Lei n. 13.874, de 20 de setembro de 2019]Atos jurídicosBrasil. [Código civil (2002)]