Princípio da conservação dos negócios jurídicos: a primazia da eficácia jurídico-social como critério de superação das invalidades dos negócios jurídicos

Abstract

This thesis aims to present the principle of conservation of legal business in contemporary Brazilian Civil Law, from the perspective of legal and social effectiveness of legal business as a criterion that takes precedence in overcoming invalidities negotiation. From the examination of the facts, acts and legal businesses, we will weave considerations regarding the fields of existence, validity and effectiveness of legal transactions. In chapter 2, conceptualize and present the profile of the transaction, since the voluntaristic conception to the vision that emerges in Civil Law contemporary, passing theories subjective, objective and structure, with today's understanding of business law as an expression of private autonomy guaranteed by law to individuals. In chapter 3, will appreciate the "pathologies" of the transaction: the nullity absolute and relative, their origins and assumptions provided for in Civil Code in force, especially the problem of inefficiency of legal transactions and instruments of "overcoming invalidities" enlightened the general clause that states the principle of conservation of legal transactions. When later, in Chapter 4, we will develop the social and legal business law recognizes the null, unlike the traditional conception, passing through the overcoming of nonentities in Public Law and Civil Procedure. In chapter 5, the core of reflections now woven, develop the profile of doctrine the principle of conservation of legal business, general clause assumes importance in interpreting the legal business, primarily from the teleological and guided by so-called realistic method, the search effectiveness of legal and social brand social and ethical character that prints the Civil Law today. Will reflect on the theory of interpretation, the role of effective legal and social understanding of the facts, good faith as an interpretive negotiating the conservation of the normative force of law in contemporary legal principles and axiological foundations that inform the principle of conservation business law (principles of operability, morality and sociality). We will analyze also the practical application of the principle in the review process of legal transactions, as well as on the legal provision which comes from the so-called "hardship", the theory of substantive due performance and UNIDROIT Principles. Still, we will present the practical application of the principle focus of the Brazilian Consumer Law and the recent jurisprudence of the Superior Court of Justice and the Court of the State of Sao Paulo. From Chapter 6, about so-called "legal measures sanatórias business," always under the principle of conservation of legal transactions and primacy of legal and social efficiency as a criterion for overcoming invalidities of legal transactions. Initially, the examination of the decay of the right to terminate the legal business riddled with nullability on. In Chapter 7, the contours are outlined dogmatic and practical application of the institutes and co-validation of the confirmation of legal transactions. In the 8th, in turn, will treat the phenomenon of partial reduction of legal transactions, always under the functional perspective and relief printing to its legal effect. Finally, in Chapter 9, devote attention to the Office of the conversion of the transaction, a valuable resource to the interpreter in the process of overcoming the legal business invalidities null