O princípio da boa-fé objetiva na relação jurídico-contratual

Abstract

The juridical-contractual relationship is the main moving mechanism in private autonomy. A formal agreement or contract implies a commitment by the parties involved to cooperate towards reaching the specific purposes established by themselves. And this is precisely where good-will gains relevance in our study, for it will at the same time limit the scope of action of the parties and establish actions to be taken towards better attaining the purposes of a given agreement/contract. In the first part of the paper, the authors tackle the historical aspects of good-will, both in the Roman and in the Canonic Law. The choice of this approach is due to fact that the Romans used to do give great importance to solemnities and contractual form, so good-will came precisely the Romans ruled as well as to better safeguard the interests of the parties in a given contract. In the second chapter, the authors show that good-will is a of conduct which restricts the autonomy of will by acting together with the laws of public arder and proper habits/costumes. In the third chapter, the authors show that objective good-will differs from subject good-will. The authors also recognize that objective good-will is nothing new forit had been known by both the national doctrine and jurisprudence, albeit in timid manner. It was also contained in the Code of Commercial Laws of 1850, which was been revoked. Today, the matter is covered both the Civil Code of Law and the Consumers Defense Code of Law. In the fourth chapter, the authors show that the juridical relationship is a process, the study with of which matter was introduced by Clóvis V. do Couto e Silva, whose approach started with the importance of good-will. The fifth chapter covers the juridical nature of good-will. The various roles played by objective good-will in contractual relations are analyzed in the sixth chapter. However, it is in the seventh chapter that we cover in more detail the role played by objective in creating the accessory duties. Finally, the multifuncionality of objective good will reveals patterns of conducts for better safeguarding the contractual interests of the parties in a democracy society. The point is that a formal agreement or contract serves as an aid to the development of a person 'as a source value' and therefore it cannot be an arbitrary or oppressive toll. Objective good-will is instrumental in helping a contract perform, at the same time, both its economic role and its ethical role with a legitimate dimension of the roles that it must play