The wars and pestilence traversed by humanity, or which, from a more pessimistic point of view, violently traversed humanity, changed cultures, habits and, more than that, they transformed law. From this perspective, the South African legal historian Michael Lobban, wrote the celebrated article entitled “The Great War and Private Law”[1], translated as “The Great War and Private Law” in which he draws the outlines of the main changes in Law during the First World War.
The writer points to examples of state intervention in contacts, both during the war and in the post-war period, citing examples such as the fixing of grain prices by Federal Decree in France, the permission for marriages of soldiers who were at the front or even killed in battles, the six-month moratorium on contracts signed in the Netherlands, the expansion of the concept of force majeure admitted in Austria, among others.
The historical record is opportune to show that, in Law, state interventionism in private relations, graduated in its time, has always been justified in moments of crisis.
Having made these considerations, when the COVID-19 virus broke the borders of other continents and reached Brazil, a broad debate began on the legal possibility of discussing the review and even termination of contracts by force majeure or acts of God.
In this scenario, given the novelty of the pandemic, at least in current times, as well as considering the need for stability of contractual relations and guarantee of legal security, it was argued that the watchword would be “to reconcile”. And, what can actually be extracted from these almost two years of exception, is that a lot was effectively reconciled, with the cases of revision of lease contracts being recurring, to name just one example, where parties agree to reduce rental values, the extension of lease terms or even the alteration of readjustment rates, all with the aim of keeping the contracts sound.
In fact, there were even those who defended the enactment of an exceptional and transitory Federal Law that demanded, as a condition for the filing of a contract review action, the duty to negotiate, a situation in which the plaintiff should prove the unequivocal previous attempt at extrajudicial conciliation.
Opponents of the aforementioned measure used as impeding arguments the right to petition and the principle of inescapability of the Judiciary Branch, both provided for in our Constitution, which would be sufficient to allow for the direct filing of an action, without prior extrajudicial negotiation.
However, numerous lawsuits seeking contractual revision due to the pandemic, which would be characterized as an unforeseen and unavoidable fact, were and still are being proposed throughout the national territory, based, among other arguments, on the relativization of the mandatory force of contracts, in the theory of unpredictability and in the principles of contractual drivism, brought by the Civil Code of 2002, such as ethics, objective good faith and, especially, the social function of the contract.
The Judiciary Branch, therefore, if (does it or not this if?) has faced the most varied legal conflicts established, for example, between shopping centers and storeowners, landlords and individual tenants, banks and customers, rural producers and trading companies, service stations and fuel distributors.
What has been seen, in a general scenario, is the Judiciary Branch privileging the objective basis of the legal business, maintaining it and, in most cases, revising it only occasionally or provisionally, thus respecting the terms agreed between the contracting parties.
It is interesting to note that the judges, in demands of this nature, repeatedly invoked the novel art. 20, of the Law for the Introduction to the Rules of Brazilian Law, according to which “in the administrative, controlling and judicial spheres, decisions will not be made based on abstract legal values without considering the practical consequences of the decision”[2] to support their decisions.
[1] Available at: < https://eprints.lse.ac.uk/61612/1/introduction%20_%20the_great_war_and_private_%20law.pdf> Accessed on: Nov 03, 2021
Available at: https://politica.estadao.com.br/blogs/fausto-macedo/panorama-sobre-a-tutela-juridica-dos-contratos-durante-a-pandemia/
Autor: Maurício Aude • email: mauricio.aude@ernetoborges.com.br • Tel.: + 5565 99981 0853
