Adimplemento substancial: um limite à resolução dos contratos

Abstract

This paper aims to analyze the role of Substantial Performance as a limit to the resolution of contracts. The law of obligations underwent modifications, especially after the Civil Code of 2002 and, with that, principle of objective good faith became basilar to the most diverse contractual relations. Aimed as the basis of substantial performance, the present work makes a study of this and other principles that justify the application of substantial performance in the Brazilian legal system. In addition, it analyzes requisites used by the doctrine and the jurisprudence for applying the substantial performance to the concrete cases. Thus, even before the legislative provision in the Civil Code authorizing the termination of the contract before non-compliance, it is of fundamental relevance the theory of substantial performance as a form of implementation the principle basis provided in the Civil Code and the Constitution, in order to avoid abuse by the creditor and ensure contractual fairness. The present study seeks to analyze the role of the theory of substantial performance in the concretization of these principles, as well as the form this theory has been applied in Brazil to conclude the positive and negative aspects for the legitimate expectation of the creditor and debtor and for the legal certainty in contractual relations.