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1. Introduction. 2. Solidarity. 3. Private autonomy. 4. Conclusion. 5. Bibliography.
The New Brazilian Civil Code, in his book I, in the Special Part, the disciplinary procedures of the various contracts, deals specifically with Article 585, on contracts for lending, according to: If two or more persons are also lending a thing, shall be jointly and severally liable to the comodante.
Extended, the solidarity leads to the common law and is disciplined in the art. 265 of the Civil Code, it is not assumed; follows the law or the wishes of the parties. In this diapason Caio Mário da Silva
"we can say that when there is solidarity in the same obligation, number of competing creditors, each entitled to any debt, or multiple debtors, each bound to it in full (Civil Code, art. 265 c / c 585 "), stressing that" the exceptional character is also the solidarity. Excepcional and abnormal, it adds. But (...) the indivisibility is on the provision, which is opposed to the fragmentation of Solutio as that solidarity does not arise re ex, not incindibilidade comes from the object, but is presented as purely technical in origin. So I need as a rule be imposed by law or agreed between the parties. As an exception to the principle concursu shares fiunt in the Civil Code (Article 265) shall not be: a conventional solidarity must be explicitly set "(labels) (" Institutions of Civil Law, "12th ed. -
In light of the mandatory terms of art. 265 of the Civil Code, do not admit the extent of solidarity beyond the legally specified cases. Solidarity is a cunning technique used by the doctrine, to ensure greater security to the creditor in the performance contract, the view that upheld the mandatory term to determine that the solidarity is not presumed but must be explicitly demonstrated for both the contractual relationship.
Equally fortunate was the understanding is the master Orlando Gomes. The dominant position in
As you can see, the legal protection is in character, sedimented by greater security of the creditor in the liquidation of the debt target. In solidarity resist a double recovery by providing recovery of both debtors.
So when the law drew solidarity simultaneously addressed in Article 585 of CC, forced, imperative, the commission to maintain a relationship for you to equality before the creditor. A way of understanding any one will be responsible for all of the debt contracted by it and the responsibility they have experienced:
Here the joint liability is expressly by the standard. Given the plurality of comodatários, each responds in solidum before the comodante, in fact attributable to any responsibility for something as if it were only comodatário. Is that the thing given in lending was in a whole and is responsible for all use each thing by itself fully in the existing legal relationship, ie, responsible for all the bonds, reflecting no influence, for example the way in which have among themselves the use and enjoyment of the thing loaned her inherent. (Ricardo Fiuzza, New Civil Code Commented. P 532).
This is because solidarity is a measure of obligation and has two or more subjects, active or passive, but might be divisible can sue the debtor and each debtor is required to comply with all the particularity that the payment made by a debtor to a creditor extinguishes the obligation to other coobrigados. Sílvio de Salvo Venosa, Civil Law, General Theory of the General Theory of Obligations and Contracts. P., 102.
Shared understanding of the master teacher, Washington Monteiro de Barros Solidarity in civil law, as an exception to the exception of the most common legal principle, is not presumed result of law or of the party. If the law does not, or if the contract does not stipulate not absent solidarity. Washington Monteiro de Barros, Course of Civil Law of Obligations law part 1. P 164.
Civil rights in
Because in this concept fático, solidarity the creditor either actively or passively and requires debtor shall, acting openly, not in Nomine alien, for others, but in his name, to safeguard their own interest. Thus Dissert.
The sense against the law 8245 of 18 October 1991, stated in its Article 2 that there is more than one tenant, believes that is supportive, the opposite is not stated. " Implies a real legal nomenclature, the possibility of the contractor is exempt from the requirement, if tacitly express.
So perfectly shaped to the guiding principles of the contract, the corollary private autonomy governed by current civil code. "It's free hire from the parties that the object is not illegal." Extracts from this understanding, greater freedom achieved by the code, the parties to reach a bilateral basis of the social contract itself.
The satisfaction with such discernment, as the master discourse Washington Monteiro De Barros, in verbis: So right before the peninsular, it is assumed the passive solidarity, the only requirement will be joint, with multiple debtors, if any express stipulation. The active, however, is not presumed.
Off the possibility of teaching the contractor, require the exclusion of their solidarity, a clear pattern here scorers excluding therefore the exception to the rule, properly nourished by the civil code, which does not make evasive, it is perfectly conceivable its stipulation in the planning home.
For Washington de Barros, Course of Civil Law of Obligations law part 1. 2003, not caring whether this obligation exists predicate is not expressly granted by law or approved by an act of will. Inferred stress, if the law allows the introduction into law of the granting clause of solidarity, there is a symbiosis of collating the exclusion of the benefit provided that the contractors properly scientificism responsibilities come this contract.
For the teacher Maria Helena Diniz, solidarity to be imposed by the intensity of the desire of the contractors, whether hired directly by free will, or the opposite expression of the law. Failure to mention the contract does not preclude the continuation of solidarity. If there is no explicit mention in the constitution of an obligation or whether the law is not silent, solidarity prevail against the presumption, based on this level of ideas, the law considers that: a) does not induce the solidarity the close relationship of co-debtors. (RT, 155:706), b) no act of will (RF, 109:465), c) if obligations assumed by shareholders or owners, shall be presumed that the solidarity took home a share to its d ) there is no solidarity with the same time (RT, 92:444).
Stick will be free of uterine security agreement between the parties, unable to achieve the rejection of solidarity, is back the constitutional principle of free conversion between the parties, among which are ensnared by the new Civil Code, by entering into symbiosis stairs of unconstitutionality. The institution of exclusion of solidarity by contract, would not be illegal, because it does not offend the law, in contrast to the Civil Code stipulates in Article 104 CC, as a prerequisite for establishment of the contract; object lawfully possible, determined or determinable. In the same fate as its essence will be to collate the real essence of the contract, 'the contract is law between the parties' that is the fundamental principle of contractual autonomy, between the parties persuaded the art. 112 and 113 of the Civil Code, verbis:
Furthermore, the present training requirements of the contract the legislature can not extinguish the legal relationship between the contractors, for simple legal call, we must consider whether the real intention of comodatários. Furthermore the legal linking of solidarity is merely adequate to the situation fática, so that both comodantes has in common the same object and engaged in a joint use for you is to be known as together, with the aim of is to provide maintenance of the split. Despite their division, if for joint autonomy so determine, because it had to extract itself from the self would not recognize the clause as illegal, intelligence of Article 166 of the Civil Code of 2002.
Under the best doctrine, the term "autonomy" has Greek origin. Self and nomos means the activity and the power to give themselves a regramento, defining their own interests and relations, to paraphrase, actually means giving laws to itself, ie self = own; = economy standards, laws.
Autonomy is, therefore, be exercised with complete independence by the subject. The rules that people choose to discipline their interests in the mutual relations, ie the power to create legal standards by the stakeholders, several planned in the state and, at times, complementing the standards published by the State. It is the power to regulate their own interests. In short, autonomy is, therefore, be exercised with complete independence by the subject. The rules that people choose to discipline their interests in the mutual relations, ie the self-regramento, that is called as private autonomy.
What highlights the issue of autonomy is the desire that, in Kantian view, is determined autonomously by itself because of the very essence. Hence the connection between desire and autonomy. It is here, the subject of legal, liberty, enjoyment and exercise of subjective rights, exercise of power and performance of duties in the face of other subjects.
Already the Federal Constitution, stuck by the principles of the social contract, tied to individual interests, which considers the material inequality of the parties. Indeed, the economic order is to "ensure that all decent existence, according to the dictates of social justice" (art. 170). Equally fortunate social justice, has gained "strength" with the edition of the New Civil Code, in obtaining the import requirements in order to "reduce social and regional inequalities," the art elsewhere. 3 and section VII, and art. 170.
Ab Initio the social and regional inequality, are incompatible with the Constitution to examine the public and private economic policies known as neoliberalism, it assumes a state minimum and total freedom to the market, with the rules of the economic order, which only makes sense to pursue the function social and legal protection of the weakest and assume a permanent state intervention (legislative, governmental and judicial).
According to Marcos Jorge Catalan, in his article "Private Autonomy - The Power of Jurígeno Subjects of Law: The private autonomy of the person is able to regulate their interests by establishing rules for their own behavior. His instrument is the business legal, statement of intent to effect the reporting law and want to protect. The legal business is thus mode of expression of the legal rules created by the will of individuals.
As seen in private autonomy allows the individual to create laws, holders of fully effective in our planning, atando individuals that they require, even because, standards contained in this personal relationship can not emerge in the result of illegality, a contrario sensu aims to protect the real essence of the contractual relationship, the enjoyment of rights inherent in the essence of the contract.
As can be seen elsewhere, our Civil Code, was designed on the framework of three pillars, three major principles, which gave him the autonomy to act fronts relations, people, things, goods. Deflui understanding of the principles of ethics, a prestigious major pilastes the legislature should ensure that the parties expressed in the contract, not simply that it was the opposite. Ignore this understanding, the will of the parties once summarized root solidarity should not be considered illegal by the withdrawal will manifest. The protection of the legislature is particular in the relations of people and things, the contrary can not be conceived as true, the way of understanding the importance of stress prevail against the will of the parties to contracts and unlimited autonomy in their home town.
Accordingly, Betti says that private autonomy is recognized by the law just "as assumption and question-generating legal relations, already disciplined in abstract and in general, the rules of law ... It is therefore recognized as an activity and potest, creator, modifier or extinguishing the legal relationships between individuals. " The private autonomy can not be understood only in connection with the concept of contract and this can only be perceived in that light.
The whole theory of private autonomy based on the idea that the rules of a certain ideal relationship is one fixed by the free determination of the parties themselves, through the contract, which guarantees, formally, the will jurígena. There is, therefore, that the primary reason that seek refuge in the theory of private autonomy would be guaranteed freedom to the individual, not only as subject of rights, but also as a human being fully supported by our magna charter of rights.
Considering the above, in spite of the arguments of the great doctrine on the subject: solidarity and private autonomy, to the art. 585 of the CPC, showing: date reverence the law as part of the legal relationship prestige legal security exhaustively determining the solidarity between the plurality of debtors, it has to aim to minimize potential fraud at the end of contracts. Furthermore, the view of the guiding principles of law can not fit in our home town to the exclusion of the parties agreed, when the verse on elements of the contract entirely lawful, the way this understanding is perfectly acceptable to set up ahead of independence between the parties, determining the exclusion clause of solidarity.
Considering also the autonomy granted by the Magna Charter of Rights, which was honored in explicitly clear that the parties are free to hire, since the verse object "lawful, possible, set out in law," once, if the object in comment, not opposed the law ecru reason to question the literality of that clause.
Thus, the view of this and other case law that the houses, showing the origin of personal autonomy and constitutional norm given full effectiveness, overriding the legal nomenclature, specifically for compatibility of these principles above, should be decisive in contractual relations. Explicitly shaped by principles governing contractual relations, which is understandable and acceptable to the exclusionary clause of solidarity, when taking the formalities evaded by general principles.
This article was translated by an automatic translation system, and was therefore not reviewed by people.