O contrato preliminarconceito, inadimplemento, interesse e danos ressarcíveis

Resumo

In 2007, the courts of the state of Delaware, in the United States of America, were demanded to decide a case between two pharmaceutical companies regarding breach of a preliminary agreement. The courts decided that, first, according to the Law of the state of Delaware, there would be two types of preliminary agreements, one separated from the final or definitive contract by mere formalities and that would obligate the parties to enter the final contract according to the terms already agreed, and the other in which the parties would agree on the essential terms of the final contract to be executed and would leave open the remaining terms of the contract, obligating themselves to negotiate the remaining terms in good faith. After establishing such distinction, the courts perceived that the case in question concerned an agreement in which its agreed obligation was the duty to negotiate in good faith, and then, decided to grant the party injured by a breach to which the debtor is liable, the right to be indemnified based on its expectation interest, that is, to be put in the hypothetical situation in which it would had been if the agreement were rightfully performed, with the courts considering that the performance of an obligation to negotiate in good faith would put the injured party in the same position of a party in the final contract. Based on this understanding, the courts awarded the creditor damages in accordance with its lost profits. Based on this reading, the present study aims to analyze the preliminary agreement as per the Brazilian legal system and its role in companies’ businesses practices in order to better understand its true concept and what performance is owed by the parties by force of such agreement. To this end, this study also performs a brief comparative analysis between the preliminary agreement and other agreements entered during the period of contract formation, as well as between the obligations provided under these agreements and the duties to be observed during the period of preliminary negotiations. Finally, this study performs an analysis over the contractual defaults and its hypothesis, and of the liability in the event of a breach attributable to the debtor, using, for this, the theory first introduced by Jhering one hundred years ago regarding negative and positive contractual interests, as updated since the time of its introduction, in order to try to correctly define the damages to be awarded in the event of such breach.

Ficha do documento

Tipo

Dissertação

Ano

2018

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/26224

Palavras-chave

Contrato preliminarInteresse contratual positivo e negativoLucros cessantesPerda de uma chanceInadimplementoPreliminary agreementBreachPositive and negative contractual interestsLost profitsLoss of opportunityDireitoDireito comercialContratosResponsabilidade (Direito)