Loss mitigation in Brazilian law: between implementation of the principle of good faith and consequence of assumptions of contract liability

entre concretização do princípio da boa-fé e consequência dos pressupostos da responsabilidade contratual

Abstract

The duty to mitigate the loss doctrine,
originated in Anglo-Saxon law and upheld in the principal legal systems of civil law, was awarded in Vienna Convention of 1980, of which Brazil is signatory. Currently, it appears that the inclusion of mitigation of damages rule is a tendency in the major instruments applicable to the standardization of contract law legislation. Thus, in order to analyze the convenience and the applicability of the doctrine of mitigation of damages under the Brazilian contract law, this article examines the duty to mitigate the loss as an expression of good faith principle, in order to establish its legal grounds. Then, in order to frame the mitigation of losses in the context of contractual liability, it analyzes the concept of damage and the causal link as criteria to mitigate losses. It examines also the effects of mitigation of damages with respect to the reimbursement of costs incurred in mitigation, as well as the quantum to be indemnified by the debtor. Finally, investigate briefly procedural practicalities concerning the issue, specifically as regards the burden of proof and possibility of craft knowledge by the judge of the burden to mitigate the losses