Análise da aplicação do duty to mitigate the loss no ordenamento jurídico brasileiro.

Abstract

The duty to mititgate the loss or, in the vernacular, the duty of the creditor to mitigate the injury, is derived from the Anglo-Saxon law and the fulcrum is the balance between the services provided by each party to the covenant in order to prevent the lender from its inertia defer the effects of a possible breach of contract, will contribute to increasing your own damage to property. In this vein, this research aims to evaluate on what basis it would be possible to apply the duty to mitigate the loss in the Brazilian legal system, what its legal status and defining parameter that liability should be used to penalize non-compliance. For this, we used the hypothetical-deductive method, the research literature and documents, through the examination of court decisions on the subject, and the comparative procedure, from the confrontation of national law with the laws aliens. Since then, remained determined that the duty of the creditor to mitigate the injury is a consectario the principle of objective good faith, insert the category of duty attached to the contract, precisely as a duty to cooperate, and that its noncompliance entails an accountability sheet that is independent of fault, occurring, therefore, an abuse of process.