Legal theory and contractual interpretation: perspectives from theories of argumentation in a contextualist approach

• Grant number: 08/04380-4
• Support Opportunities: Scholarships abroad - Research
• Start date: August 20, 2008
• End date: January 19, 2009
• Field of knowledge: Applied Social Sciences - Law - Theory of Law
• Principal Investigator: Ronaldo Porto Macedo Junior
• Grantee: Ronaldo Porto Macedo Junior
• Host Investigator: Andrea Biondi
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil
• Institution abroad: University of London, England

Abstract

Brief Research Plan - Contract Theory and Interpretation The new Brazilian Civil Code published in 2003 replaced the old one (1917) and enlarged considerably the importance of the general clauses (and principles) in the interpretation of contracts. The principle of good faith is one of the most commonly invoked both by Legal Doctrine and Courts decisions. Nowadays, liberal contractual formalism is being replaced by a new principiological formalism, in which general and abstract definitions about the morality of law are used as tools for legal concrete contractual analysis. This new formalism, base on a superficial and mistaken reading of authors like Alexy and Dworkin, is usually incapable to overcome the limits of a mere rhetorical application of these new concepts. This is partially linked to a naive and simplistic transplantation of international doctrines (especially doctrines on principle interpretation). My project tries to show how the Relational Contract Theory (RTC), especially the I. Macneil´s version, best attends the methodological demands for a none purely discretionary, ad hoc and rhetorical interpretation of the principle of good faith. Furthermore, it tries to show the advantages of the contextualist approach offered by RTC compared to Law and Economics (L&E). They are linked to the fact that the relational approach doesn´t share neoclassical assumption that contractual behavior is solely guided by instrumental rationality. It acknowledges that there are multiple motivations for the contract which are not reducible to material gains and efficiency. Contractual relations are created in contexts that generate and regulate the morality contract (internal social norms) that usually are not considered by orthodox economic analysis. Finally, the project targets the theoretical and practical advantages that derive from the criticism of some philosophical premises assumed by neoclassical contract theory, such as the concept of action, consent and intention. It will analyze how a contextualist hermeneutic technique based on a richer conceptual apparatus can grant more objectivity on contract interpretation and broadens the consideration of a moral dimension of contracts that is not defined by general and abstract moral reconstructions, but also by also explore how a contextualist method has to pay attention to domestic legal culture, values and institutions. (AU)