The Primacy of the legal model of frustration in face of the incompatibility of the dogmatic model of obligations of means and results with the Brazilian Legal Order
The obligations of means and results are enshrined in the majority Brazilian doctrine and judicial precedents, and their configuration generates several practical consequences, according to the doctrine, such as the definition of the type of civil liability to be applied, the distribution of the bur...
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| Tipo de recurso: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2024 |
| País: | Brasil |
| Institución: | Pontifícia Universidade Católica de São Paulo (PUC-SP) |
| Repositorio: | Direitos Democráticos & Estado Moderno |
| Idioma: | portugués |
| OAI Identifier: | oai:ojs.pkp.sfu.ca:article/67145 |
| Acceso en línea: | https://revistas.pucsp.br/index.php/DDEM/article/view/67145 |
| Access Level: | acceso abierto |
| Palabra clave: | Obligations of means and results Diligence Burden of proof Frustration theory Fortuitous and force majeure Obrigações de meios e de resultado Diligência Ônus da prova Teoria da impossibilidade Fortuito e força maior Obligaciones de medios y resultados Diligencia Carga de la prueba Teoría de la imposibilidad Caso fortuito y fuerza mayor |
| Sumario: | The obligations of means and results are enshrined in the majority Brazilian doctrine and judicial precedents, and their configuration generates several practical consequences, according to the doctrine, such as the definition of the type of civil liability to be applied, the distribution of the burden of proof of fault, in the event of default and the demarcation of the limits of the provision. This distinction, arising from the apparent contradiction between arts. 1,147 and 1,137 of the French Civil Code of 1804, was already considered the summa divisio of the law of obligations, but, since its origin, it has suffered a series of criticisms, notably due to the absence of objective criteria that would outline the classification. This thesis focuses on the analysis of the dogmatic model of these obligations, based on the study of benefits, as conduct and result, the concept of performance, and the paradigm of functionality, which guides the conception of the obligation as a set of processes endowed with final content. It also seeks to compare the classic criteria that support the distinction with the Brazilian legal scenario, about civil liability, contractual law and the rules that define the distribution of the burden of proof, which ends up demonstrating the lack of compatibility of the legal model of obligations of means and results with data from the Brazilian legal system, which suggests that its import took place uncritically. In the end, it is concluded that the use of the legal model of frustration, adopted by positive Brazilian norms, proves to be appropriate and technical to resolve issues commonly resolved through the use of the French dichotomy and, in view of this, it seeks to point out criteria intended determining the destination of the consideration, in the configuration of frustration. The thesis, despite its clearly academic character, seeks to go beyond the hypothetical debate, by facing practical problems that guide the life of the law enforcer, about legal solutions that usually involve the inadequate and imprecise classification of obligations of means and results. |
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