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A study of objective good-faith in the Brazilian Civil Code of 2002: sign, meanings and jurisprudential determination

Grant number: 14/08594-0
Support type:Scholarships in Brazil - Scientific Initiation
Effective date (Start): March 01, 2015
Effective date (End): February 29, 2016
Field of knowledge:Applied Social Sciences - Law - Private Law
Principal researcher:Alessandro Hirata
Grantee:Beatriz Hernandes Silva
Home Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

The subject of many articles of the Brazilian Civil Code, the good-faith is studied in both perspectives, the subjective and the objective. The last one, brought by the New Code as a general clause, made the good-faith when it is not complied in the contracts, to be imposed to the unfair contractor the consequences of his conduct, reviewing and adapting the contract, not necessarily nullifying it because of a defect. On one hand, the New Code changes provided a broader dialogue between other contractual principles, such as the contracts' conservation, and granted an opening to the legal system for the demands of ethical conducts, on the other hand, the indeterminacy of general clauses related to good-faith induced to a generalist comprehension of the concept, causing an indiscriminate use of it, without its different meanings, ethical, economic, and establisher of duties between parties, including the contracts' pre and post phases, to be distinguished. Because of it, is proposed a survey of all the clauses in the 2002 law code that refer to the good-faith, not only to know which cases the undetermined legal concept acts but especially to study all the different meanings admitted by this general clause, by determining the different meanings assumed on the most important civil law, in order to list the occurrences of the good-faith and its most recurrent meanings on the Civil Code, to later practical analysis, through the judged cases of São Paulo and Minas Gerais Courts, in order to study which are the most recurring meanings of the objective good-faith in these cases, delineating a profile of this courts as their different comprehensions about good-faith.