Contractual fairness, fair dealing and contractual risk

Abstract

The objective of this article is to assess the potential reception of the so-called principle of contractual fairness (understood here as the structural balance between reciprocal obligations, in the absence of a better translation) within the Brazilian legal system, comparing it with approaches developed in foreign legal frameworks– especially the Portuguese Law – and examining it in relation to contractual risk. To this end, the study reviews Brazilian case law, noting that the principle is frequently invoked as a complementary argument rather than as the central basis of judicial decisions, while also analyzing the normative foundations that may implicitly sustain its application. The research further contrasts contractual fairness with the concept of fair dealing, exploring how this standard of conduct informs notions of justice in international commercial relations and its connection with good faith. Particular attention is given to the phenomenon of original unfairness–present at the very formation of a contract–raising the question of whether the legal system should intervene to rebalance obligations voluntarily undertaken by sophisticated parties. Finally, the analysis develops into a reflection on the role of contractual risk as a reliable interpretive criterion, an essential element for understanding and validating the contemporary contractual exchange.