The good faith according to the Superior Court of Justice

• Grant number: 14/02157-7
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: August 01, 2014
• End date: July 31, 2015
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Eduardo Tomasevicius Filho
• Grantee: Guilherme Acurcio Barbosa
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The good faith can be objectively described as the expectancy that exists as the ethical behavior that all parts shall have in front of an established obligation. This expectancy is of utmost importance, for it is one of the necessary elements for any free agreement to be materialized. As it refers to the agreements made between the parts and their manifestations of will, it is noticed that it covers much of the legal areas. The good faith principle permeates therefore all the legal system and can be noticed, mainly, in the Civil Law, for it is in this area that the free manifestation of will is more present, what makes the good faith even more important, once it is an conditional element of an legal business to be valid and efficient. Therefore, this subject has been of great interest of scholars for quite some time, what resulted, nowadays, in a consistent theoretical ground for the study of this topic. However, this existing theoretical ground wouldn`t find sufficient correspondence in the legal production, once the Brazilian Civil Code of 1916 did not legislated about the matter, what was accordingly revised by the new Civil Code of 2002, that welcomed the principle on its articles 113, 187 e 422, and the Consumer`s Defense Code, that made the same thing on the item IV of the article 51. These legal devices enunciated the well-known omnipresence of the good faith in the legal system. This change resulted in an open and wide-spread utilization of the good faith from the legal operators, what made possible to observe, nowadays, a large jurisprudence on the subject, once this principle has various and evident practical applications, as, for instance, to determine the validity of a contract or to establish duties that weren't objectively described in the contractual letter. Therefore, any research aimed to study the good faith cannot neglect the way it is treated by both of the parts mentioned, the theoretical or doctrinal one, or the practical, the jurisprudential one. This way, this research intends to study the principle of good faith, firstly as it is shown by the doctrine responsible for the subject and, following, to analyze the decisions of the higher national court that attends this topic, the STJ, all that aiming to identify and illuminate the various applications that may be obtained from this principle. Also, after being made the identification of patterns beyond the judicial decisions, this research aims to comment the cases in which results would diverge from the predicted conclusion that the previous study would have indicated, these commentaries will be an effort to understand the characteristics that resulted on this difference of conclusion. With the conjunction of all the acquired knowledge on both described areas of interest, this research aims, finally, to clarify how the good faith is according to the Superior Court of Justice.