Die soziale Funktion des Vertrages im brasilianischen Código Civil - A Função Social do Contrato no Código Civil Brasileiro

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Abstract The new Brazilian Civil Code of 2002 has introduced a general clause in general contract law, i.e., the social function of the contract (art. 421). Up to now no other legal system is familiar with such a general clause. It is therefore neither surprising nor striking that a variety of different meanings has been associated with this general clause, e.g., the duty of solidarity between the contract parties to the inclusion of public interest in the contract. This goes along with its nebulous history. However, the courts focus on one specific meaning, to wit, the judicial revision of contracts.

This dissertation, therefore, compares the judicial revision of contracts in Brazilian law with the judicial revision of contracts according to § 313 BGB. On basis of her comparative investigation the author discusses the cultural dimension of Brazilian law and its characteristics, to wit, flexibility, the animosity towards private autonomy, the role of consumer law and the so called “constitutionalisation” of civil law.