Legal Articles

1 - INTRODUCTORY CONCEPTS
  
 
As introduction, you can invalidate the theory of adimplemento material is derived from the English law which has its origins rooted in commom law.

So the first question that concerned us is how this theory was imported into a legal system essentially built under the civil law and its close link with the theory of objective good faith?

In north, mister is establish what is being adimplemento substantial. Thus, it is the semantic content of words, and the first word in the dictionary Houaiss electronic means: "act, process, or effect of adimplir; fulfillment of an obligation" while substantial is "what is great, considerable, large, large. "

Thus, uniting the two meanings and adapting them to the right, culminating with the fulfillment of an obligation (in its objective component or material that is: the provision) in considerable degree, large or bulky. That is, the payment must be at least in its almost entirety.

This time, we can exemplify that in an insurance contract in which the insured has been regularly paying 10 of 12 plots in which the award is required, and the tenth months will occur in a car accident, the question remains: can he use the insurance or the insurer's liability goes up will make use of art. 763 of the Civil Code?

In the following lines set the left to read between the theory adimplemento substantial and objective good faith, for together, at least try to, solve the issue.
 

2 - THEORY OF GOOD-FAITH OBJECTIVE AND DUTIES OF CONDUCT ACCESSORIES
 
Calls to this topic emphasize the good faith objective is the beam, the safe path that must be pursued in all dealings, including as commandments of the Civil Code and Code of Consumer Protection. This is the wording of the III Jornada 167 of Civil Law as follows:
167 - With the advent of the Civil Code of 2002, there was strong approximation principiológica between this Code and the Consumer Protection, with regard to contractual regulation, since both are incorporated in a new general theory of contracts
  
Moreover, it is necessary to invalidate the principle of good faith objective is positive in the Civil Code, these are some examples:
 
Article 113. The legal business should be interpreted as the good faith and usages of the place of its conclusion.
 
Article 187. Also commits an unlawful act the holder of a right that, in practice it clearly exceeds the limits imposed by their economic or social order, good faith or in morals.
 
Article 422. Contractors are required to keep, so the conclusion of the contract, as in their implementation, the principles of probity and good faith.
 
Paradigm as the Code of Consumer Protection can be cast, even as a vector of interpretative and enforcement of that law, the art. 4, III, or see:
 
Article 4 - The National Policy for Consumer Relations aims to answer the needs of consumers, respect for their dignity, health and safety, to protect their economic interests, the improvement of their quality of life, as well as transparency and harmony of the relations of consumption, attended the following principles:
 
III-harmonization of the interests of participants of the relations of consumption and the compatibility of consumer protection with the need for economic development and technology in order to make the principles on which the economic order is based (Article 170 of the Federal Constitution), with based on good faith and balance in relations between consumers and suppliers, (labels)
 
 
The Portuguese called this doctrine as a principle of conduct ancillary duties. Even the Portuguese author Menezes Cordeiro duties accessories are:
 
a) in contrahendo the duties imposed on contractors during the negotiations preceding the contract, developed by the duties of protection, for clarification and loyalty, b) effectiveness of protective duties to others c) Duties post pactum finitum, which remained after extinction of the obligation, d) obligations which remain in the void .