The concretization of abuse of rights by the Superior Court of Justice

• Grant number: 13/21862-0
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: January 01, 2014
• End date: December 31, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Luciano de Camargo Penteado
• Grantee: João Gilberto Belvel Fernandes Júnior
• Host Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

Nevertheless the Civil Code has followed the condifications model, whose logic refer to casuistics, a technique linked to the legal rationality of the Roman-German family, with the introduction of the so called general clauses - legal technique that introduces, in conduct rules, undetermined legal concepts, of great semantic range and great axiological significance - legislator decided not to foresee all the circumstances in which law should act, deciding to regulate throughout commands of higher ethic significance so as to equipe the judges of tools capable of, simultaneously, operationalize law and allow it to be always in accordance with social context in which disputes could be find. To preserve juridical security, although, it is necessary that jurists reach practical criteria to the concretization of these general clauses, otherwise, they would be empty arguments to base any thesis in legal actions - tendency so called as "getaway to general clauses". This project of research objectives, based on the cases decided by STJ, to study the criteria of concretization of abuse of rights general clause, stated on article 187 of the Civil Code, aiming, in the practical reason extracted from specific cases, to describe the contents of undetermined legal concepts of "good-faith", "economical and social function" and "good morals".