Modification of obligations: a systematic review

• Grant number: 14/01032-6
• Support Opportunities: Scholarships abroad - Research Internship - Master's degree
• Start date: March 01, 2014
• End date: August 31, 2014
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Lydia Neves Bastos Telles Nunes
• Grantee: Gustavo de Revorêdo Pugsley
• Supervisor: Luís Manuel Teles de Menezes Leitão
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Institution abroad: Universidade de Lisboa, Portugal
• Associated to the scholarship: 12/09106-3 - Modification of Obligations by Legal Facts, BP.MS

Abstract

Current doctrine generally considers the effects of legal facts (those resulting from the correlation between facts and norms) on the creation, modification or termination of legal relationships. While doctrinal texts mostly addresses how legal facts create these relationships, the present study is devoted to legal facts tending to modify the legal relationship, particularly in the field of the Law of Obligations. At first, a criterion must be determined: modification of the isolated right or modification of the Obligation? In "complex" obligational relationships there are many mutual rights and duties, such that the extinction of a right can result only in the modification of the relationship fully considered. Long ago, Savigny asserted that a reasonable analysis of a right must be based on a thorough understanding of the legal relationship at issue. There are now renewed reasons to adopt these relational criteria when analyzing legal relationships. The obligational relationship may be seen as a process, which leads to the reinforcement of its identity with the inclusion of a finalistic element. The ideas of modification and identity are linked, because if a "change" leads to the loss of identity, the legal relationship may, in fact, have been terminated. Most of the doctrine on the subject of modifications addresses the "transfer of obligations". Some other studies, beside these subjective modifications, addresses objective modifications, usually restricted to those made by agreement. In this paper, we seek a more comprehensive analysis of the hypotheses of modification: this is the core of the work developed in Brazil, and it is precisely what we intend to develop in Portugal. (AU)