A eficiência econômica dos princípios do direito contratual brasileiro: uma abordagem crítica sob a ótica da análise econômica do direito

Abstract

The present study proposes to make a critical analysis about the doctrinal principles of Brazilian contractual law through the bases established by the Economic Analysis of Law - AED and the premises set forth by the AED Contractual, in order to discover if the principles and, consequently, the branch itself is economically efficient with regard to environmental protection. It is understood that the contractual right when coated with great efficiency can be seen as an instrument of more protection for the environment. That is, the central axis of the present research is the negative externality generated by the contracts, which reduces the economic surplus of the exchange, making it economically inefficient. To answer the questioning, the present study is divided into three chapters. At the outset, the basic foundations and concepts of AED, according to Richard Posner, are established: rationality, efficiency and value. Finishing with the clarification about the positive and normative conceptions of AED. The second chapter seeks to understand how the concepts presented in the first chapter apply to Contractual Law, being the so-called Economic Analysis of Contractual Law. Thus establishing market failures, which are factors that push the market away from maximum economic efficiency and in what way the Law can mitigate them, being itself a factor of economic efficiency. In this second chapter the understanding is exposed when the exchanges are economically efficient, that is, when they generate na economic surplus. It also demonstrates the conceptualization of negative externalities and how they affect this economic surplus. Finally, in the third and last chapter, a study is made of the contractual principles established by civilian doctrine in Brazil, so as to be able to analyze their respective economic functions and to conclude whether or not the branch under study with regard to externalities is efficient. It is, therefore, a study that aims to analyze the extent to which Brazilian contractual law is economically efficient through an investigation of its doctrinal principles and their relationship with market failures, especially when speaking of externalities. The methodology used is eminently theoretical and doctrinal using a national and international bibliographical survey, with the purpose of concluding the economic efficiency or inefficiency of the Brazilian contractual law with the axis in the contractual externalities.