Breach of contract

a dialogue between legal theorie and the jurisprudence from brazil´s Superior Court of Justice

Abstract

In Brazil, the main legal systems of contracting in the private law sphere – the civil and the consumer – indicate different legal criteria for termination or modification of contracts by a supervening fact. Therefore the contractual revision requires the interpreter’s prior classification of the nature of the contract in order to identify whether the legal relationship is subject to the general rules of the Civil Code – which is more rigorous to justify judicial intervention in contracts – or the special scheme of the Code of Consumer Protection, which is flexible. The task of qualifying the contractual relationship, however, entails much rather doubt for the interpreter, given that the legal definition of consumer, by itself, is unsufficient to firmly clarify which persons and which legal-obligational relations would indeed benefit from the Code of Consumer Protection. The jurisprudence of Brazil´s Superior Court (STJ) is steeped in precedent regarding the qualification of legal-obligational relationships, their distinctions and on the theoretical and normative grounds justifying the contractual revision due to supervening excessive burden. The study of jurisprudence from this court is crucial to allow the interpreter to conclude with greater certainty whether a particular legalbargaining situation is likely to be judicially changed in virtue of a supervening fact. This article Contracts – Consumer Law – Breach of contract. attempts to provide an overview about the problem of contractual judicial review and the related jurisprudence from the Superior Court of Justice.