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Abstract: We propose in this study, a reassessment of the legal positions occupied by the contractors under the Civil Code as regards the causes of contract review, when a surviving unforeseen and extraordinary event, will record any of the contractors of an excessive burden. We believe that the contractors can no longer be regarded as inert poles within a contractual relationship, but above all we must recognize that before the contract is characterized as being a subjective legal situation, heritage and existential, without however, bound to be a tool which casts reflections across the community. Problematized, so the issue of contractual changes in circumstances. Indicate paths to be followed when once signed a contract and alleged a change occurs which makes it more serious in one respect.

The world is now experiencing its moment of greatest economic instability since the crisis of global economic 1929.No scenario in which we live today, a crisis in any country causes problems in other developed markets. This is happening with the crisis originated in the United by the collapse in the real estate market and is taking major financial institutions into bankruptcy.

The big problem is that this trip occurred there in the land of Uncle Sam, will reflect the direct or indirect way in all economies in the world, including here in Brazil. As said by Paulo Sandroni, Professor of Economics of the Getúlio Vargas Foundation:

"The U.S. economy is the world's largest. Virtually all economies are articulated with it, either in financial terms or in foreign trade. If something happens with the U.S., according to a major recession, affects and influences the world. In Brazil too. We have one of the largest U.S. trading partners, although the financial joints are a little smaller. In this respect, we are being affected by the crisis "

  The most affected are individuals and businesses who had contracts with the various index currency north americana.Até the public sector that is affected with this sudden change in the market, (reduction of the CAP) [1]. As the dollar rose disproportionately in recent weeks, therefore these contracts have abrupt and extraordinary change in its values, becoming in some cases to debts that the debtor will not adimplir.

Many are requests to review contracts, based on the theory of imprevisão so that these values are reviewed and adjusted accordingly on a fair, to be paid. However, there is a reluctance to make use of this tool, except when the segment in question is the economy. These variants of oscillation inherent in the economy would be the very essence of the economy, much to the economic globalization.
The contractors at the time to express your wishes, agree that indexing will be based on a sensitive index of fluctuation could not subsequently claim an unexpected event, an event that in the words of Silvio de Salvo Venosa "imprevisão to be a global phenomenon, affecting the company in general, a segment palpable throughout the company. It is war, revolution, the coup d'état, totally unexpected (Venosa2007, p.430), see the outstanding scholarly makes reference to a segment palpable, so it is not to say that the economy can not appear in the role of unpredictable events and extraordinary, such as the American crisis. Therefore, these contracts would be subject to revision based on the theory of imprevisão as the extraordinary impact caused because of this "storm" in the market economy. So this study to a point that certainly will be affected with the economic crisis (the contracts), the discussion moot opportunity to warm discussions between operators of the law and especially among companies and individuals that have contracts indexed to the currency American and were an hour for other victims of an excessive burden caused due to sudden exchange rate.

2-Social Change

It must be emphasized that the hermeneutic must be susceptible to legal analysis of the entire context fático that hangs on the subject of the assessment. If once we need the overlap of the pacta sunt servanda, to ensure stability and security in legal relations, now no longer can be interpreted restrictively and irrefutable, given that contemporary society is the result of a profound change historical, sociological, political and economical.

Finally, no more living environment that the end of the eighteenth century where individual freedom was a social desire. Today, we look forward to achieve real justice of the law, which corresponds to the right of the fair, which raised the constituent and fundamental principles and objectives of our Republic, and is this new generation of law which must buscar.Anatole François, French writer winner of the Nobel Prize in 1921, in his "Crainquebille" also published in the seventeenth century. XIX, in which the time was essentially retributive justice, state: The duty of fair is to ensure each of which it can, the rich and their wealth to the poor their poverty "[2], calls him, is the proportionality and equality, with the answer for each share of which is required both in the sphere of material equality as formal.

"The only form of equality that is compatible with freedom as understood by liberal theory is the equality in freedom, which has as a corollary of the idea that each should enjoy as much freedom as is compatible with the freedom of others or, as heralded, anticipating the difficulty of reconciliation, the French aristocrat Charles-Louis de Secondat, known as Baron de La Brede and Montesquieu, in his classic The spirit of the law: Freedom is the right to do everything that the laws allow"

Since the limit of the law is perceived at the point where it ceases to meet the social order - the common good.
3. Foreshorten History: Theory imprevisão and pacta sunt servanda.
                Here are two related topics: pacta sunt servanda and rebus sic standibus. Related because, while tracks by antagonistic, leading to the same destination, which is the guarantee of an end legally protected or at least the first almejado.O to preserve freedom of choice, freedom of contract and legal certainty that the tools provided confiáveis.O in our town are second to protect the common good, the contract balance, equality between the parties and make sure the interest will not prevail over the social.

More than 2200 years ago, as can be noted in the Code of Hammurabi has provided the opportunity to revise the clauses governing the business when the state of fact was modified in such a way that the debtor could not meet its speed without lagged property, in verbis: "if someone has a debit to interest and a devastating storm the field or destroys a harvest, should modify their board and not pay interest for that year".

In ancient Rome a similar forecast prescribing existed the possibility of revising the contractual basis since there was change of initial conditions which will form the agreement of wills.

With the advent of individualism and the almost absolute freedom preached by the Revolution of 1789 in France, this prediction to review the contract when the circumstances that motivated the stop feature was left a little to one side. With the idea that man is free and equal, he might well express their will, and contract with others to its own taste, so the clause rebus sic stantibus fell into disuse, and emerged the highest French explained that the code "the contract is law between the parties."

The principle of pacta sunt servanda is his birthplace in Roman law: The principle of maximum binding as a rule had already forecast in Roman law, which should prevail pacta sunt servanda, or the binding provisions of the pact. Could not, therefore, without any plausible reason, the contract be revised or abolished, failing to lead to the Roman legal uncertainty. (TARTUCE, 2007, p. 99).

This principle (freedom of choice) had its heyday after the French Revolution, with the predominance of individualism and freedom of preaching in all fields, including in the contract. Sacrament was in art. 1134 the French Civil Code, which states that "the legally constituted conventions have the same value as the law for the parties that have" (Gonçalves, 2004, p. 20).

          In the Napoleonic Code, the first great modern coding, based on the ideals of freedom, equality and fraternity, the contracts started to be used for acquisition of property, the autonomy of preponderate vontade.Nesse crotch, almost one hundred years later, came the German Code of 1896, highlighting also the will as the core of legal transactions. [6] The German Civil Code in the same direction mentioned nothing about the circumstances of the contracts, but the case has accepted the clause rebus sic stantibus in cases where you see striking injustice from the perspective of the principle of good faith. In this context, the German author Oertmann created the formula "base business" that was a formula for understanding the verbal content of contratos.A basic theory of the business was still very well explained by Karl Larenz who tried to reconcile the two current German and indicate an equal distribution of risks of the business, namely the basis of subjective business and basis of the business objective. The first base was the vision based on the performance of subjects related to significant decisions for the formation of the business. The second considered only on the decisions and circumstances related to the end of the business.

In our Civil Code of 1916, influenced by the individualistic and liberal ideals, also favored the autonomy of the will, with the assumption of equality between the contractors.

The Liberal rule of law gave rise to a welfare state of law, leaving aside the individualism, to give greater protection to corporate interests, at the inequalities of the time. Dirigisme The state has limited the principle of pacta sunt servanda, that the contract is law between the parties as a way to restore equality in fact between the contractors.



4-Changing paradigms of social

The contemporary society has new paradigms and contracts will govern other types of relations, an exaggerated need to consume and mass recruitment, which means our current innovative legislation, limiting the freedom of contract.

  For analysis of this study is needed to keep in mind that the law is a science as well as legal, and sociological, historical, economic and political, and as such, it should fit the changes of society, especially in relation to contracts that are business legal reflect throughout the community.

The pacta sunt servanda is now applied in a scathing and irrefutable, because it was the best represented the ideals nailed by bourgeois revolution. However, as the law is a science that has as its hermeneutical assumptions of the analysis of all factors fáticos existing need today in our state called neoliberal, a hard analysis on how to apply the pacta sunt servanda. Only with this analysis even series, we can overcome the legal technicality and formality targeting settle disputes with justice and equity.

In today's society has become, and that even the way of hiring is not the same since, in most cases the parties do not have the opportunity to discuss and negotiate the terms. The joint contract, where both contractors have the opportunity to express themselves and hire as they wish, now almost extinct before the mass of contracts, today in most cases are already ready, not allowing the will of both contracting included in this negotiating context, more so, a unilateral expression of will which is always one of the contractors at the mercy of the will of another, and in most cases are large companies, banks, financial, insurance and other lease.

"The classical theory built during the rule abstentionism won new principles mitigating the excesses occurred because the idea of voluntarism of the parties. In fact, today noted that volunteerism was a fallacy, since on occasions the individual needs to hire and that happens often, so involuntary. In such circumstances the State can not remain inert without giving protection to citizens who are contractually binding relationship in highly unbalanced."]
5-Application and Requirements of the Theory of imprevisão

  The theory of relativity imprevisão search pacta sunt servanda front changes of bases objective of the contract, the occurrence of any fact that may save the excessive burden of the parties, with great advantage to another, thus to also avoid unjust enrichment. The doctrine teaches that the best theory of imprevisão focuses on the idea contractus et qui habent tractum sucessivum dependent on future rebus sic stantibus intelliguntur. This means that in-term contracts continued and delayed implementation, the link established between the contractors are tied to continuity of the stipulation made at the business.

Are assumptions that must be present at the time of application of the theory of imprevisão: 1) setting of extraordinary and unforeseen events, 2) evidence of the excessive burden that causes unbearably compliance with the agreement for one of contractors; 3) the contract is continued implementation or delayed implementation.

           Providing the possibility to intervene to review the contract, thus Venous talks:

"The possibility of judicial intervention in the contract occurs when an unusual and surprising, a new case, arising in the course of the contract, putting in a situation of extreme difficulty of the contractors, ie, causing an excessive burden on their prestação.O that takes into account, as we understand, is the burden superveniente.Em any case should be assessed the normal risks of this negócio.Nem always amount to an excessive burden for the benefit of practical credor.Razões of social adequacy, end Finally the law, advise that the contract in such circumstances is resolved or led to sustainable levels of performance to the debtor. (intravenous 2007, p 430)."
Understanding the above-mentioned master brings to a situation where one of the contractors were exposed to extreme difficulty, that their obligation to become extremely costly, advises that the contract is resolved, or driven to levels that the debtor can afford to ônus.Como well remember the author, the occurrence will not always generate an excessive benefit for the creditor, and this requirement also required by art. 478 CC2002, I understand that this assumption is a practical irrelevance, because the contract review is not intended to harm the profit obtained by the contractors, but that any of them is subjected to an extreme disproportionality in its delivery, between the conclusion of the contract and its implementation.

        César Fiúza discusses the various theoretical concepts developed on the Theory of Imprevisão, the first clause of the doctrine of rebus sic standibus medieval origin.
          Speech on the implied condition theory, the work of English law by which the survival of the contract requires an implied condition that the external circumstances remain the same at run time. This theory has the aim to preserve the subjective imprevisão contractors, because, if the external circumstances which served as the subsidies, or parameters at the time of hire leave to appear, is in check the maintenance of the contract itself.
Talks, even on the basis of negotiation theory Objetiva; when there is imbalance of benefits or when they become grossly disproportionate, that is not by far occurs when the rough proportionality of benefits, alleged by the parties. [15] This theory may be applied to any type of imprevisão, and in the specific case of the U.S. crisis, it would be of great application prática.


Sendo the economy by its essence susceptible to variations, the understanding is that no one could think of applying the theory of imprevisão up desire to preserve the exteriorized by contractors, and the legal certainty that meander negotiating, however, the economic and commercial transactions are in the right formulations essential to the validity and legal effectiveness, which occurs because of the relationship between the economic and legal systems, each with their specific values and their rationales, but integrated so causal and determining (Protection consumidor.p.37).


The teacher mentioned, brings with caution that excessive disproportionality, which was not alleged by the parties, will unbalance the contract, there should be a review, I understand that no matter the segment in question, is the coup d'état, is the revolution that is the economy, what matters is that if the fall of the base business, the contract does not be given real or contractors, much less its social function. In contracts, which there is a link susceptible to change as in the economy, coupled with foreign currency contracts, which the contracting parties is expected within a normal, or what is provided is the normal variation of these junk and indices, and yes it would be assumed to make contractual review, however, when such change exceeds the limits of normality, it is understood that no longer appear in the negotiating context, the subjective interests of the contractors who had not the characteristics and technical tools to predict this sudden change, it is not reasonable to make them as forecast.

6-Theory imprevisão in the Civil Code of 2002

  The Civil Code of 2002 innovating on the Code of 1916, has expressly relevant devices on the theory of imprevisão, the matter was governed by Articles 480 and 478.479, which are expressed the specific rules which would make the review contratual.O art . 317, even if found in other chapters in the Civil Code also regulates the settlement agreement.
Article 478. Continued implementation of the contracts or deferred, if the provision of a party becomes too costly, with great advantage to the other, due to exceptional and unforeseeable events, the debtor may request the termination of the contract. The effects of that decision to declare retroagirão the date of service.

Article 479. The resolution can be avoided by providing the defendant is equitably modify the conditions of contract.
Article 480. If the contract obligations to fit only one of the parties, it could claim that their performance is reduced, or changed how to run it, to avoid excessive burden.
Article 317. If, for unforeseen reasons, survivor manifest disproportion between the value of the benefit due and the time of its execution, the judge can correct it at the request of the party in order to ensure, as possible, the real value of the benefit.

In the lesson of Anisio José de Oliveira:

Define the theory of imprevisão, new-style of the old clause, as an implied term, as shown in all the while not explicitly specified in some of them, and that strives for certain unforeseen events - lead to failure and a subjective conclusion burden to the debtor, have strength enough to relieve it of its obligations (1991, p. 32/33).
SILVIO RODRIGUES teaches that "The idea is to avoid the commutative contracts in which, by definition, there is an apparent equivalence of benefits, time unbalance the former equality, making the provision of a party too expensive in relation to the other.

Contracts by definition must be deemed equivalent in the provision and consideration, leaving the balance of parity in benefits, the exegesis of the theory should make use of imprevisão as a tool to restore the former is equal, returning to its status quo, and therefore the feasibility of the contract, as honey from the start by contractors.
The same teacher teaches that;


"... The principle of the obligation of contracts can not be breached before comezinhas problems of compliance by external factors entirely predictable. (...) The imprevisão that may allow an intervention order in the contract is only willing to smother all the possibilities of predictability."

See, we are not talking to review any and all contracts have to be borne in mind that the contract meets the requirements of Article 478, which are, in fact surviving the unpredictable and extraordinary, causing an excessive burden to the parties, and the extreme edge outra.Esses requirements required by art. 478.Analisando himself with candor, notes that are cumulative, so difficult, its implementation, further that, the person must prove that fact is amazing, was not expected, and that these events provided a great advantage for other, saving it from an excessive burden .. Art. 317 of CC2002, is a little less inflexible, requiring only the cause unpredictable and manisfesta a disproportion in the value of the benefit due and the time of his execução.Acredito that the legislature wanted to make a distinction between two types of imprevisão, an objective in Art 478, and a subjective in art.317.Objetiva at the art. 478 CC, would be one in which the technical information needed to predict these events are not subjective in the orbit of the contractors, would be a prediction made by some organizations (states, organizations, experts and others). It would be subjective (art. 317) , what are their assumptions, the intimate of contractors, or fruit of the goals exteriorized the exact time of hire, would be the ultimate end sought by the contractors.

  CAIO MARIO DA SILVA PEREIRA considering that "Assuming that the contractors, to enter the flat, had in mind the contemporary economic environment, and reasonably predicted for the future, the contract must be fulfilled, but not provide the parties to benefit expected."

The teacher quoted above points out that with magnitude, there must be reasonable in predicting the future, and economic environment that is a measurable inconstancy, received the endorsement of the legislature to appear as a parameter in determining the correct order of values agreed (art. 487). now, the question arises, what is the criterion to determine with reasonable prediction that? The Civil Code of 2002, established as a requirement of the resolution because the occurrence of unpredictable, which sets vague and subjective concept, which may vary depending on the person and their level of education and information, and that is the understanding that should be recommended, since it is unreasonable to require the predictability of a fact which would not have the profile for this subjective understanding, so you should not charge him surviving the burden that has hovered over the negócio.Deve is analyzing the situations when concluding the contract, and if it is subsequently broken, ie when there is a breach of basic business, you should review the contract is restoring the balance wherever possible contract, and the master of Silvio Salvo Venosa calls this new trend ''a new conception of the contract, their new roles in society and the modern states require, by exception, a reduction of the general principle (Venosa 2007; p.429 ...), which is the way servanda.Desse pacta sunt the subjective imprevisão would best meet the real objective of the contract, the result of free expression of the contractors.

           Another article that needs to be observed by studying the theory of imprevisão is Article 480, which provides that if the contract only to satisfy the obligations of the parties, it can claim that their benefit is reduced or changed how to implement it, to avoid the burden excessiva.Estes devices consistent with the notion of legal use of business rather than simply discard it in regard to the principle of conservation of contract that seeks to preserve the business when there is the possibility of its rupture. The magistrate must keep the contract already running, can modify it according to criteria of equity and reasonableness, to make it less costly for a party.

This relativization of pacta sunt servanda, is also in support of general standards, established by the legislature, very happy, entered them as a way to update the civil law, which must always act in line with the company. The legislation provides for the possibility of some devices relativization forward to some concrete cases, and on account of the social dynamics, chose to enter some general rules.


"General rules do not provide specific conduct, carrying in itself a generic content which is a reference point for the hermenêuta.O legislator, then, to establish a general clause, ceases to adopt rigid concepts and, in the words of Humberto Theodoro, do not bind the finished forms. The rules, therefore, become dynamic and able to meet the social reality in which they are inserted.


In this context, are the social function of contracts and good faith as a general objective and open, allowing a better match to the case. It is therefore clear that the judge is given some degree of subjectivism, as the missing element for concrete measure of the absence of the social contract of good faith or objective."

  Thus there is a need for a reassessment of the legal positions occupied by contratantes.Torna is incompatible analyze the Civil Code of 2002 in recognition of the existentialist nature of the contract, which no longer can be seen as mere symbol of encodings century. XVIII, to be diminishing, as a human being, only enhancing it as holder of a claim.

7-The role of social contract as a way to relativize the pacta sunt servanda

There are several elements that serve to support the theory of imprevisão, facing the rule of pacta sunt servanda, and should be applied even to contracts affected by economic crises as esta.O contract as a way to generate wealth and travel, is undoubtedly its role in society, playing a role of much social interest, in addition to the equity principles of contract, good faith, ethics, among others help to provide the subsidies needed to put some rules agreed between the parties (pacta sunt servanda) always seeking the interest of the community.

The term "social function of contract" is closely linked to the point of balance which concluded the business must achieve and which is called the principle of equity contracts. Thus, a contract that brings the burden of the parties - held hipossuficiente and / or weak - is not fulfilling its societal role, requiring review by the national judicante.

             However we can not understand the role of social contract as exterminator of freedom of choice, but the determination that it should be employed under the collective interests.

This understanding was adopted in the "Day of Civil Law", whose menu is transcribed below:

"The social function of contract under Art. 421 of the new Civil Code, does not eliminate the principle of contractual autonomy, but attenuates or reduces the scope of this principle, when present metaindividuais interest or interest on individual human dignity. "


"The social function, which means the prevalence of public interest on the private as well as the magnitude of the collective benefit at the expense of purely individual phenomenon is that massive, modern, inspired our entire legal system, breaking with the standard contained in the remuneration brocardo suun cuique tribuere -"to give each one its", and trying to establish the foundations for a more distributive justice in nature, designed according to Hegel, promotes social inclusion of the excluded and in this mister, take steps to comply with a the fundamental objectives of the Federative Republic of Brazil, eradicate poverty and marginalization and reduce social and regional inequalities. "


"The social function of contract expresses the necessary harmonization of the interests of private contractors with the interests of the whole community, in other words, the compatibility of freedom with the principle of equality, because, for the liberal, the key is to expand personality of the individual and for the equal, is the development of the community as a whole, even at the cost of reducing the sphere of freedom of individuals.


"Thus, it is seen that the social function focuses on the entire legal phenomenology, finding address, also in relations contratuais.O new civil code, the host brought out for the rights of the third generation, anticipated in its art. 421, that freedom of contract will be performed in the limits of reason and social function of contract, removing thus the legal architect of individualism Clovis Bevilaqua, who, accordingly, was inspired by the French Civil Code and, of course, the ideal revolutionary who influenced the genesis of this law well. "


"The institution of the social function of contracts, therefore, ended the fussabout, much more than as doctrinal terminology, about the dissimilarities between contractual freedom and freedom of contract, as the contractual freedom, which is the social function of contract is limited objectively by the public and the value of collective rights and interests on the highly individual, and freedom of contract is a subjective right, which each contractor has to arbitrate on the feasibility of formally specified or not hiring."

The contract is inserted in the macro environment in which several consequences occur especially for those who are not part of the contract. Thus, in this macro environment is that the infractions are treated the social function of contracts. [30] Maria Helena Diniz asserts that freedom of contract is not absolute, because it is limited not only by the supremacy of law and order, which prohibits agreement it and is contrary to morality, so that the contractors will be subject to the collective interest, but also the social function of contract, which determines the care of the common good and the purposes sociais.Consagrado is the principle of sociality.


"This meager traces shows that the social function of contracts, specifically brought by the new Brazilian Civil Code has precípua of purpose through the humanization of social and economic relations, efforts to implement a social fraternity and solidarity more overt and thus Ensanche open to integration, not merely formal but real, of our society in the generation of rights nominated as the 'third generation."


Embarking this understanding has been that:

"The ideal is strongly pursued, without doubt, the practice of justice and warns Miguel Reale, not designed according to figures in abstract, but of people considered in the context of their unique circumstances. Fleeing hostile view of the old and the fairness of the referral ethical principles, the new code pleaded recognizes the impossibility of fulfillment of the written law, because there is, indeed, the new normative view is, yes, 'the fullness of the ethical-legal system. Thus, the Code is a system, a set of harmonic rules that require the use of every moment as the analogy and principles of fairness, good faith, to fix."

           However, the acceptance of the theory of compliance with the sociological basis of the contract by our courts is still so shy, perhaps because of resistance to breakage on a classical theory, rooted in law and based at the Civil Code of 1916. We have seen that in any period of continuous or delayed implementation may be applied to the theory of relativization imprevisão place the principle of pacta sunt servanda. This is because, due to the change of paradigm of the Civil Code of 2002 in the Brazilian Civil Code of 1916, applies to contract the principle of sociality. The company shall be responsible for the social existence of its members and encourage respect for the rights of individuals, it causes the relativization of subjective rights to the use of the principle of social function in private relationships.


Facing the prospect of sociality, we find that the contractual right, given the new socio-economic reality, need to adapt and gain a new function, which, in the words of Claudia Lima Marques (2002, p.154) means the realization contract and the balance of justice.

In view of the above work has to be, the contract can no longer be seen in the foreground as a tool for the realization of individual interests. There is something more behind that instrument. No matter what the event that triggered the disparity in benefits, which may well be an event on the economy, what really matters is that the contract meets its ultimate goal, that is, to be completed and that meets the interests of contractors; and to circulate wealth that will benefit all the community.


 Understanding that all contracts that have abrupt changes in their values, because they are tied to U.S. currency, should be revised so that it returns the amount that actually meets the interests of contratantes.A main idea of relativization of the principle pacta sunt servanda, is limited to cases where the possibility or not notice of the review, the analysis sample is who will say that these contracts meet the requirements for review, thus remaining in the security relations jurídicas.


Em for review contract, the idea is not the resolution or termination of this contract, but that no prejudice resulting from events or by contractors, are divided proportionally, restoring to equal fair, it is assumed the contract.


This article was translated by an automatic translation system, and was therefore not reviewed by people.

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