Clipping of news on Brazilian Culture, Law and Citizenship
This article was translated by an automatic translation system, and was therefore not reviewed by people.
Every manifestation of human activity in itself brings the issue of liability. This may affect the problem of establishing the concept, which varies as much as the aspects that can cover as the philosophical and legal theories. [1]
Josserand feels responsible that ultimately supports a harm. Take a liability in its wider sense, such that the qualification of the responsible of causing damage to itself [2].
Mazeaud et Mazeaud differ, claiming that the definition of responsibility to put two people in confrontation, assume, necessarily, a conflict arising between them, to propose, after which responsibility will be the person to repair a loss, what is at stake there is the very basis of liability [3].
The liability requires an act that constitutes lawful or unlawful act, the occurrence of a moral or assets caused to the victim, and the causal link between the action and the damage [4]
In an agreement of wills in order to produce legal effects in accordance with the legal, valid and give the consent of free will of the parties. The assumption of justice is equality in contractual services. But when there is in this relationship, a business operating in a part by another, to shift responsibility for the damage. "There is no design or penalty, or compensation, or reward, not the individual that should receive, as its point of application, ie the taxpayer, or patient" [5].
"Every law is based on the idea of action followed by a reaction, to restore a broken line [6]. Therefore, it provides the art. 427 of the Civil Code: "The proposed contract requires the bidder, if not the opposite result of the terms thereof, the nature of business, or the circumstances of the case," the modification of what the parties agreed would lead to a legal commitment of the business. Perfect is the real contract in law, making it law between the parties. If this link is broken unfairly, the aggrieved party deserves redress.
"Force the power to hire, that is, the discretion to decide on the interests and convenience of each, if and when a business established with other legal contracts. Freedom of contract includes a choice of the person with whom to do it, and the type of business to conduct. Freedom of contract reflects the power to determine the content of the contract, clauses drafted their flavor to the free play of the convenience of the contractors. Once completed the contract, becomes a source of formal law, allowing either party to mobilize the unit coator the state to do so as it is respected, to ensure their implementation according to the will which has its constitution "[7 ].
The damage, the liability is the element that creates less controversy. Thus Carnelutti defines injury as the damage of interest. But explains that the law does not protest against any lesion of interest, but only against that, according to law, should be avoided or repaired, this is against the damage antijurídico [8].
As the principle of a requirement of the Convention of the fundamental principles of contract law, the stipulations made in the contract should be faithfully observed, on pain of execution against the default method [9].
Once the contract, and vice absence from that opportunity to its resolution, it is radiating effects which affect the bond can not avoid the parties because that is not legally relevant. The law makes available to the injured party the option to claim the fulfillment of the contract or his undoing, without prejudice, in any of the assumptions of damages, with focus on art. CC 475 - "The injured party may apply to the default termination of the contract, if not require you prefer the performance and it is in any case, compensation for damages."
The failure of the obligation, when unjustified, the lesion in-law, determining the compensation of damages caused by default. The default is the failure of voluntary legal duty. If the strange event of noncompliance during the will of the debtor will be involuntary, by setting up unforeseeable circumstances or force majeure, not leading, as a rule, the responsibility [10].
Down the art.402 CC: "Except for the exceptions expressly provided for by law, the losses and damage due to the creditor include, beyond what actually lost, which no longer reasonable profit."
Losses and damage to the creditor cover, the second article mentioned, beyond what actually lost, which no longer reasonable profit. Providing further, that law, in art. 403, that "even if the failure results from willful misconduct of the debtor, losses or damage only include actual damages and lost profits for her direct and immediate effect without prejudice to the procedural law, whereas, the magistrate, whether: emerging positive or damage, damage or loss of profit and no causal connection between the injury and negligent or intentional failure by the debtor [11].
"It should be emphasized that lost profits are an intellectual construction to establish a presumption juris tantum about the amount that the creditor failed to understand because of the breach of an obligation" [12].
The damage is established through the confrontation between the property actually exists after damage and that possibly exist if the damage had not been produced, the damage is expressed by the negative difference found in this operation [13].
The damage may relate to the person or to property of third parties (including rights), in two senses listed, heritage and moral - and in both - but especially in the latter case, should be determined on objective criteria such as considering Barassi, and demonstrated in concrete [14].
It applies in cases of loss or damage, which determines the art. 404 CC: "The losses and damage to the cash payment obligations will be paid with the second currency update regularly set official rates, including interest, costs and fees of lawyers, subject to conventional punishment."
If no surviving issue and unpredictable, which change the conditions under which the pact was signed, there is what we talk about theory of change in the conditions employed. Then the default is based, or the intent, or guilt, in accordance with Art. 186 of the same law, "who, by voluntary action or omission, negligence or recklessness, violating law and causing injury to others, even if only moral, commits an unlawful act."
In both situations, the application of art. 927 of the CC - "Whoever, in tort, harm to others, is obliged to repair it" - is a result of legal means ordinary.
The default or negligence doloso is a source of liability, whereas a failure would only be justified by force majeure, fortuitous event or by the old theory of imprevisão, which results in extinction of the obligation, without obligation to make any damages. This is the general principle that dominates the right home.
The contractual liability is based on guilt, understood in the broad sense, so that the culpable failure of the bond occurs either by its intentional breach, there will aware of the debtor fails to provide adequate, with the intent to harm the creditor ( intent), or breach of duty by law, without the awareness of rape, without the deliberate intention of causing damage to the outside [15].
É assegurado, constitucionalmente pelo inciso V do art. 5, the right of response proportional to the harm, in addition to compensation for material damage, moral or image, being raised right to the category of fundamental guarantee, and viewed as Pétra clause, therefore, immutable.
The three components of the etiology of liability are: harm to an existing or standard error of conduct, an injury, and causation between one and another. When this situation occurs, without adequate compensation, it is case of unjust enrichment, prohibited by Art. 884 CC: "That, without cause, if enriched at the expense of others, you will repay the improperly received, made the update of monetary value received."
The principle that prohibits unjust enrichment, is founded on equity and was known in Roman law [16].
Freedom of contract must be consistent with the purposes of the social contract, and the primary values of good faith and honesty, as art. 422 of the Civil Code: "The contractors are required to keep, so the conclusion of the contract, as in their implementation, the principles of probity and good faith." Following socialist tendency, provided in Article 113 of the New Civil Code that "legal transactions should be interpreted as the good faith and usages of the place of its conclusion."
In this device, good faith is established as a means of applying the standard aid agencies on the interpretation of the bond business, especially contracts.
The principle of good faith requires the parties to behave as it should not only during the dealings, but also during training and performance of the contract. Is related to the principle of law according to which ANGUAGES can benefit from their own turpitude by the claims. Provides the art. 422 of the Civil Code that contractors are required to keep, so the conclusion of the contract, as in their implementation, the principles of probity and good faith [17]
The hiring of services of labor that ignore these pillars that sustain the social contract as an instrument, offends the principle of valuation of human labor, provided by the Federal Constitution in its art. 170: "The economic order, based on the enhancement of human work and free initiative, aims to ensure decent existence for all, as the dictates of social justice ..."
It is indeed, as noted, in violation of an archetype of social conduct: fairness in dealing, honesty in the conduct, faithfulness in fulfilling agreed. It is the principle of comutatividade the contract. This follows, essentially, the influences of economic order and is the idea that all exchange of goods or services must be based on the premise of comutatividade or the equity of benefits. From this perspective, the breach of duties attached generates positive violation of contract, a sort of default against contractual liability that aims to breach of these rights annexes.
This article was translated by an automatic translation system, and was therefore not reviewed by people.