A violação à função social do contrato e o dever de indenizar

Abstract

This thesis explores the existence of a legal situation between the parties in a contract and third on the basis of social function. The general clause of Art. 421 of the Civil Code results a series of rights and duties that creates active and passive legal positions between the parties and third parties in which there is a pretension of a safety contractual relationship by third parties and the impossibility of the parties in a contract cause damages to third parties. It notes, from concrete situations and legal provisions, the relativization of the precept res inter alios acta, aliis nec nocet nec prodest (or thing done between others does not harm or benefit others in the Common Law). When the legal positions are injured by failure to comply with safety duties, happens the violation of a social function in a contract, making the deal dysfunction about your typical social, economic and legal effects. The social dysfunction of a contract will happen by the abusive exercise of freedom of contract, which results in a social damage. The emulation of contractual autonomy beyond the limits of purposes and society will be undermined by this abuse as the typical legal interests of business. Hence it is said that the violation of the social function by the parties and third parties is an abuse of rights and causes social harm, as acting contrary to the contractual sociability conduct of duties implies injury to the moral patrimony of society and security of legal relations. The violation of the social function results in an illegal fact in which the patrimonial damage should be compensated by the one who dysfunction the contract because of non-compliance with its passive position created by the contractual situation. Resulting damages of the social dysfunction of the contract will be tort. That's how it comes to responsibility of the parties and the third by the dysfunction of the contract. For the elaboration of this central idea, a literature search with national and foreign literature was made, which gave theoretical support to the elaborate work. Documentary research with trial it was established that the conclusions arrived at in this work are being applied in Brazilian courts, highlighting the Superior Court of Justice (STJ). This demonstrated the applicability of the theory to concrete cases and for resolving contractual problems from the social function. The research was qualitative with analysis of the values, representations, habits, attitudes and opinions on hiring. About the literature, the method was inductive and descriptive, in that it has developed concepts, ideas and understandings with the patterns found in the production process and circulation of wealth and acquisition of property through the contract. As for the respondents judged, were collected to test the models, theories and verify the assumptions of liability for the abusive exercise of contractual autonomy. Recognized the existence of legal situation between Contracting Parties and third parties, found by chance in both dysfunction the contract was drafted as compensation for damage done is possible, with emphasis on expansion of a third category of damage identified liability by Antonio Junqueira de Azevedo, namely, the social damage to justify the abusive exercise of freedom of contract by third parties and also harms society, resulting in an objective liability system