Satisfaction guarantee clause and clause of proof on sales contract

• Grant number: 12/20443-1
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: February 01, 2013
• End date: January 31, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Bernardo Bissoto Queiroz de Moraes
• Grantee: Artur Mabelini Silva
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The sell independence of the purchaser's satisfaction or approval, as well the sell independence of proof are institutes of Contract Law. Therefore, in many life situations, allow a more adequate way of wealth circulation: be it in people's private life, in business transactions between companies, as well in offers to consumers market (those are situations that perceive different rules in Brazilian Law Arrangement). In the last decades, Brazilian Law Ordering has been through relevant changes. Year ninety was promulgated Law n. º 8.078, which established the Consumers Defense Code, in addition, more recently was approved the current Civil Code, Law n. º 10.406/02. The last one is responsible for the 1916 Civil Code (Law n. º 3071) and the 1850 Commercial Code (Law n. º 556) revocation, promoting the legislative unification of Obligations Law. These new Diplomas substantially modify the dynamic of juridical relationships in focus, although they haven't received the deserved attention. There is not even one Brazilian monograph on the theme, plus the main books of reference are - due to their seniority - outdated over the new legislative reality. However, these are institutes of great practical relevance - commonly used. In the last two decades, they have grown in importance due to their applicability in distance selling, with special emphasis on electronic media. It can be said that increasing technological developments in the field of communication did accrue the usefulness of these institutes. We are facing, therefore, contracts with a vast scope of application. Since they may be offered - by adhesion - to thousands of consumers; or used in commercial negotiations between companies, in a variety of situations and possibilities, no matter the size of involved; or else, important even in civilian life. This study, although the focus on Sale Contract (respecting the geographical layout of the Civil Code of 2002), takes along a development (including a comparative approach) on applicable clauses to a variety of other legal business, that's, because, it is a model contract and therefore has provisions for subsidiary implementing the other contracts. As a result, the clause may be inserted (consensually or offered on the market) in several other contracts, including atypical and/or unnamed (in Civil Law systems there are contracts species regulated by law, those are named "typical contracts"; opposing those are the "atypical contracts", which are agreements governed by involved, for these, the "typical contracts" serve as interpretation standard, and have subsidiary applicable rules) - quite frequent in our times. (AU)