A possible relation between good faith and Jürgen Habermas’s theory of communicative action

Abstract

From the analysis of the compatibility between the theory of communicative action´s basis and the good faith, it is reasonable suppose that the habermasian theory can offer to the interpreter, important resources to evaluate the lawfulness of the parties conduct, from precontractual stage, as well the contract conclusion stage and post-contractual stage, guided by the good faith as an imperative of cooperation and contractual loyalty. In fact, a deeper study that coordinates both theoretical constructs and make explicit the hermeneutic relation between them and the plausibility in the evaluation of objectively licit contractual conduct, in order to avoid any insecurity represented by topical and solipsistic application of that standard. The central question of this work is verify if it is possible the hermeneutic relation between the good-faith and the communicatively act as a factor of contractual conduct optimization. In a first moment, considerations of general order will be done about the good-faith, his presuppositions, his functions and the way it is applied in Brazilian laws, taking into account his recent effectiveness in the CC/2002. Subsequently, under the perspective of the linguistic turn, the Habermas communicatively act theory will be exposed, highlighting the categories able to optimize the understanding and interpretation of the contractual conduct under the perspective of reciprocal cooperation, protected by the goodfaith. Next, the relation between this two topics will be done, wondering about the possibility of hermeneutic relation between the good-faith and the communicatively act as an optimizer factor of the contractual conduct in the private law, under the perspective of mutual cooperation imposed to the contractors. The conclusion reached is that the acting communicatively theory, through the analysis of his claims of validity, can offer an important resource for the interpretation of the good-faith, especially on the optimization aspect of the contractual conduct, while this standard comes to legally sanction the lack of direction able to lead the parts to a mutual understanding in the business relations.