Adimplemento substancial a preponderância da função social do contrato e do princípio da boa-fé objetiva

Abstract

Given the need to extend the content of the obligational law, it studies the application of the theory of substancial due performance of the obligation, showing that in any situation, in which the inadimplemento was of little importance in such way that was insufficient to cause harm to the creditor, applies this institute perfectly. It is true that the obligation should be fulfilled respecting the principle of the autonomy of the parts, because the contract’s reason is to satisfy the wishes of the contracting parts, who expect this result. Similarly, the principle of binding force, "pacta sunt servanda" implies the commitment of the contracting parts to comply with the agreed. However, these principles were relativized as a result of the transformation of private Law that performs better social balance, regulating the interests of parts, with the supremacy of collective interests to individual interests. Thus, the doctrine of substantial due performance have long been positively valued in the foreign law, gaining ground in the Brazilian legal system, to avoid termination of the contract for breach of minor importance and also for releasing the debtor. The acceptance of the theory found in the doctrine and jurisprudence as a result of the principles of the social function of the contract, Article 421, and of the good faith, Article 422 of the Civil Code.