The jurisdictional application of the social contract principle

• Grant number: 17/05659-1
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: August 01, 2017
• End date: July 31, 2018
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Alessandro Hirata
• Grantee: Ana Paula Lopes Palacini dos Santos
• Host Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

The 2002 Civil Law Code brought in its 421 article, the contract's social function as a contract principle. The principle of the contract's social function says that the contract has another social goal, beside the goals inherited in the liberal theory. This new goal was born in the State transition from the Liberal State to the Social State, in which the State has not only the responsibility to protect the law, but also the function to secure the social issues above individual issues. Although, the 2002 Code brought the principle of contract's social function as a general clause. This kind of clause has an open concept and its meaning is build up through the Court's decision. Having it in mind, some authors say that the Courts don't have the general techniques clause application and this situation may creates an uncertainty about what really is the contract's social function. Thus, this project try to understand the contract's social function as a limit to the free way to hire principle. And because it is a general clause, it depends on a built jurisprudence to have a concrete meaning. In this hand, this project also proposes a jurisprudence analysis of the Tribunal de Justiça de São Paulo's decision, targeting to understand how the contract's social function principle is used and how the judges justify this use, searching for a connection between the 2002 Civil Law Code and the decisions in each case. (AU)