The social function in the brazilian experience and its impact on the re-signification of contratual freedom in the 30 years of the 88 Constitution

Authors

  • Gustavo Henrique Baptista Andrade Universidade do Estado do Rio de Janeiro - UERJ
  • Marcos Augusto de Albuquerque Ehrhardt Júnior Universidade Federal de Alagoas - UFAL

DOI:

https://doi.org/10.18316/redes.v6i2.5047

Keywords:

Private Law, Re-signification, Social function, Contract.

Abstract

With central theme on the functionalization of institutes of private law, the present paper deals more specifically on the social function, constitutional principle linked to the right of property and consequently to the contract, instrument of the circulation of goods. Follwing a strong historical and spacial contingency, the social function enters in the Brazilian legal order through the Constitutions of the twentieth century. The principle of the social function of the contract inscribed in the 2002 Civil Code (article 421), prescribes commitments for the community, not only imposing limits, but sometimes restricting the possibility of contracting, which is corroborated by the paragraph in the article 2.035 of the same Code. The functional perspective allows a re-signification of the traditional categories of private law following the constitutional axiological table, constructing adequate answers to the most varied concrete cases.

Author Biographies

Gustavo Henrique Baptista Andrade, Universidade do Estado do Rio de Janeiro - UERJ

Doutor em Direito Civil pela Universidade Federal de Pernambuco-UFPE.

Procurador Judicial do Município do Recife.

Marcos Augusto de Albuquerque Ehrhardt Júnior, Universidade Federal de Alagoas - UFAL

Doutor em Direito Civil pela Universidade Federal de Pernambuco - UFPE.

Professor Adjunto da Universidade Federal de alagoas - UFAL.

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Published

2018-09-26

Issue

Vol. 6 No. 2 (2018)

Section

Articles

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