The Binding Force and Social Function of Contracts: A State of the Art in Brazil and Chile
| Autor | Esteban Pereira Fredes |
| Cargo | Universidad Adolfo Ibañez, Santiago, Chile; Universitat de Girona, Girona, Spain |
| Páginas | 227-261 |
THE BINDING FORCE AND SOCIAL FUNCTION OF
CONTRACTS:
A STATE OF THE ART IN BRAZIL AND CHILE
esteBan pereira fredes
1
Abstract
This work presents contract law’s transit in the Latin Ameri-
can legal context. Despite the nineteenth-century codications
which ostensibly subscribed to individualistic parameters, with
which our modern contract law was designed, the region’s con-
temporary codication has distanced itself from this manner of
comprehending the contract, its legal bases and purposes, con-
solidating itself with exigencies of sociability and other social
principles. This is particularly analyzed from the standpoint of
the embodiment of the social role that contracts have in today’s
Brazilian legislation, which poses difculties to the effectiveness
of contracts’ binding force, and other contractual principles.
How this phenomenon reveals the complexity of contract law
is presented herein, posing an immediate challenge to the efforts
towards harmonization of contract law in Latin America, consi-
dering a common basis.
Key Words: contractual binding force, contract’s social function, individualism, sociability,
Latin American contract law.
INT RODUCTION
Modern contract law possesses an undeniable commitment to nineteenth cen-
tury premises on contracts, and dogmatically upheld because of the fundamental
principles of contract law. They are bound together by the individualist founda-
tion that is found throughout private law. The Latin American contract system, on
its part, consecrated this way of understanding contracts, and the same permea-
ted throughout the different civil codes of the nineteenth century. However, this
common justicat ion presents strong tensions today, given that contemporary codes
formulated in Latin America have set themselves apart from such prism, moving
1 Universidad Adolfo Ibañez, Santiago, Chile; Universitat de Girona, Girona, Spain (esteban.perei-
ra@uai.cl; esteban.pereira@udg.edu). Translated by Rodrigo Durán and Alberto Pino.
Esteban Pereira Fredes
228
LATIN AMERICAN LEGAL STUDIES Volume 1 (2017)
over to a foundation designed around sociability and other socia l principles. And, in
other legal systems throughout the region, the i nuence of scholar ship and case-law
have provoked a revision of the individualist paradigm in the law of contracts, even
though its civil legislation has remained without major reforms.
Considering this, the attempts to harmonize the law of contracts in Latin
America nd themselves with a crucial challenge, related to determini ng what the
foundation from which it is pertinent to promote uniformity of contract law is. The
existing tension may be shown, in part, with the relationship between the binding
force of contracts and the social function that the contractual relationship is to ob-
serve. Although both its foundations and boundaries move in opposite directions,
under the current state of things within the Latin American context, the traditional
defense of unconditional nat ure of the rst pr inciple of contract law, coex ists w ith
its restriction and weakening upon the base of social objectives that the contract is
required to satisfy.
In what follows, what will be shown is the transit from the law of contracts for-
ged by the nineteenth century paradigm, and amply taken in by pr ivate law systems
in Latin America, until its recent critical evaluation, which has unfolded through
legislative re-formulation, or wit h the support of scholarly research, and its reception
by case-law. The tension that exists between the binding effect of contracts and its
social function will be especially analyzed. For this, our attention will be centered
on the Brazilian and Chilean contractual systems, even though the considerations
that we will analyze here will also consider the Argentinean and Colombian legal
systems. The main objective of this work is to show that contract law’s complexi-
ty presents dif culties regard ing efforts towar ds harmonization, and this is made
transparent when we tend to the foundation of this area of private law. Currently,
Latin America n contract law presents deep tensions and ssures in the way of un-
derstanding the contractual relationship and the principles that make up the law
of contracts, constituting an immediate challenge for the agenda of uniformity. It
seems that it is not possible to sustain the thesis that contract law in Latin America
continues to rest upon individualism.
In the rst section, we wil l develop the nineteenth century claims of contract
law that incarnated the codication process, along with the basic principles of con-
tract law that regulate classical contract law, jointly founded upon individualism.
Then, in the second section, the new contract law will be proled, as installed by
Brazilian legislation in 2002, considering the principle of sociability, focusing atten-
tion on the consecration of the contract’s social function and its relation with the
binding force of the contractual relat ionship. In the same manner, we will review the
current situation in Chile. Fi nally, in the third section, the dimensions of the inciden-
ce of social principles in Latin American contract law will be presented; and, at the
same time, the problems associated with rethinking the foundations of contract law
will be reviewed, for the project of harmonization fostered throughout the region.
The Binding Force and Social Function of Contracts: A State of the Art in Brazil and Chile
229
Volume 1 (2017) LATIN AMERICAN LEGAL STUDIES
1. NINETEENTH CENTURY PARADIGM AND CONTR ACTUAL
IN DI VI DUALISM
The traditional law of contracts possesses a close commitment with the way
of understanding the contractual relationship that was inspired by the Illustration’s
ideas, and was reected in nineteenth century codication. This vision conceived in-
dividuals as agents with equiva lent powers and abilities for negoti ating and for de-
ning their contractua l obligations; nding themselves, f urthermore, in symmetr ical
positions to par ticipate in the contractual relationships that they deemed t. Without
signica nt differences between them regard ing their competences, the contracti ng
parties could autonomously decide which contracts to conclude, and under which
terms. Meanwhile, the justice of their agreements constitutes a matter guaranteed
precisely by these very principles; that is to say, since the concluded contract comes
from individuals situated in equivalent negotiating positions, and from which the
parties freely determined the contractual provisions that govern their legal rela-
tionship.
This nineteenth century paradigm of contract law was explained in the cod-
ication. T he project of s ystematization and simplicat ion that wa s embraced by
codication required t he making of simple, concise, and brief codes, so as to unif y
the diversity of legal rules in basic legal bodies that were of easy access and focused
on a single and abstract image of the subject.2 Beyond the natural differences that
exist among individuals, for the purposes of the legal relationships that these may
develop with in the framework of private law, codi cation established a forma l model
that grouped them all as subjects of the law. From a contractual point of view, there
is an egalita rian principle that deals with al l agents as equally capable of contracting
obligations and exercising rights through contractual relationships, and this allows
to dissipate the dif ferences that, at least culturally and economically, irreparably
affect the bond between the parties of a contract.
Such contracting paradigm does not naturally have a clear speci cation of all
its implications. Notwithstanding the foregoing, it is possible to identify a group of
claims that ex press t his nucleus of beliefs. These point to the following: (i) contractu-
al will; (ii) symmetry between contracting parties; (iii) contractual stability, and (iv)
absence of intervention exogenous from parties. We wil l briey review the sense of
each one of these claims. In the rst place, contr actual will holds a place of privilege
in modern contract law. It is the starting point to generate legal ef fects through the
conclusion of a legal transaction; and, i f it be the case, a contractual relationship. At
the same time, the enforceability of t he terms t hat the parties have established rests,
precisely, upon whether they are the results of concurrence of wills. Of course, the
manifestation of will is a necessary but not sufcient element to build a contra ctual
relationship, given that the private lega l system has participation in both the consti-
2
tareLLo
(1995), pp. 47-52.
Para continuar leyendo
Solicita tu prueba