Contemporary private law: general clauses in the general section of the Civil Code and incomplete contracts

• Grant number: 12/02225-7
• Support Opportunities: Regular Research Grants
• Start date: May 01, 2012
• End date: April 30, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Luciano de Camargo Penteado
• Grantee: Luciano de Camargo Penteado
• Host Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

In contemporary society, contract activity can no longer intend to exhaust the legal planning of interests. Not only due to initial impossibility, but also because of detailed negotiation's high transaction costs. The incomplete contracts paradigm arises as an alternative to exhaustive definition of the clauses in adhesion contracts. This model is similar to general clauses in law theory, a legislative technique that seeks to encompass what law, made in the past, intends to regulate in the future. This project will analyze incomplete contracts as a model of contemporary age, both from the contract theory and contracts in kind standpoint, in comparison most used general clauses, in order to application in contract, so as to identify similarities and distinctions between integration of gaps and thus contribute to the activity of judges, arbitrator, mediators, public agents in general, legislative bills, and somehow also to contractual parties. Similarity is due because contracts, made to regulate future relations, reflects, somehow, past experience, as parties seek to bring to the present the possible problems in writing drafts, ex ante structuring the largest number of solutions to situations that could occur during their relationship. General clauses and incomplete contracts have in common the practical demonstration of the need to gain flexibility in applying rules and contractual clauses , as a concrete rule, to adapt two realities, law and contract, to the dynamism of social changes. (AU)