Instrumentos de interpretação e integração contratual: aplicação nos conceitos legais indeterminados e cláusulas gerais

Abstract

The new Civil Code introduced a new phase for the legal system of private law, incorporating to your text, rules of open type, namely, the indeterminate legal concepts and the general clauses, which enables the interpreter, specifically to the applicator of law, greater power of decision, rather than being a mere interpreter of the positive law, going up to the complementer function of the law, then interpreting the fact and adapting it to standard then called after the first procedure. Thus, in dealing with indeterminate legal concepts and with the general clauses, it is expected from the applicator of law, a greater use of experience rules and complement tools made by the system, such as the general principles of law, the customs and usages. It`s also necessary for the interpreter to know and distinguish clearly these instruments, because it is not uncommon to be confused, especially when it handles the general principles of law, the general clauses, the rules of experience, the indeterminate legal concepts and legal concepts determined by function. What we seek in this work, without any pretension of exhausting the subject, as well as vast is quite complex, is working on the operationalization of these instruments, bringing to the text, from an educational perspective, the possibilities of using these standards at the clogging of the arising gaps, are those arising in the legal text or those that come from contracts, dealing with the interpretation and integration of the standard uniquely, pointing out that in actuality of the Brazilian Corporate Law can not interpret the contract without reference to its system where it belongs. This study highlights the principles of good faith and the social function of contract, by the importance of the topics in the news