A obrigação de melhores esforços: uma análise à luz do direito anglo-saxão e do direito brasileiro

Abstract

This dissertation has aims to analyze the Best Efforts (US) / Best Endeavors (UK) Clause, which has been used since Napoleonic times and had its use in juristic act, deals and agreements in North America, the United Kingdom, and lately in international transactions. The development of the work raised through the observation and analysis of the Best Efforts (US) / Best Endeavors (UK) Clause, in the main states of the United States, Canada and the United Kingdom, pointing out their differences and interpretative convergences, led to a definition of Best Efforts (US) / Best Endeavors (UK) Clause. After analyzing the Best Efforts (US) / Best Endeavors (UK) Clause, went to examine their reception and interpretation in accordance to Brazilian law. In this context, the starting point was the interpretation according to the Brazilian Federal Constitution, its classification as an obligation and its consequences as other private law institutes, such as strict liability and the burden of proof. Finally, the conclusion is that Best Efforts (US) / Best Endeavors (UK) Clause shall not to be confused with the good faith, since it is expected the lender a duty to conduct higher than expected in good faith, limited solely by the ability and knowledge the debtor and the circumstances in which he finds himself. Under the aspects of Brazilian law, we conclude that Best Efforts (US) / Best Endeavors (UK) Clause is an obligation of performance and that its nature is best-suited obligations to do. Taking into account that good faith is one of the limits of Best Efforts (US) / Best Endeavors (UK), it was necessary to carry out an analysis on the treatment in this institute in the Civil Law and in Common Law, in relation to this subject we can verify that the Good-Faith in Civil law is extremely broader and more complex than in Common Law, hence making the Best Efforts (US) / Best Endeavors (UK), more onerous in Civil Law than in Common Law. For their particularities and depend mainly on the debtor's judgment on the limits within which it is insert, it is understood to be more appropriate to impose on the debtor to prove such limitations, including, where necessary, by inversion the burden of proof.