A função social no direito civil: os contratos e a teoria da imprevisão.

Abstract

The theme of this work "The Social Function" is of great relevance in the context of civil law today is seen that it exercises great influence on legal relations in the midst of mass society of a globalized world. Despite being old and therefore its origin dating back to the earliest days of Christianity, when the church, through the pronouncements of its leaders, the example of so-called papal encyclicals, has acknowledged the social property, social function has evolved, passing through large changes mainly over the last two centuries, culminating with his positive in constitutional texts of various countries, and particularly in Brazil, with the promulgation of the 1988 Constitution, which poses as a principle of the basilar rule Brazilian State, the solidarity and the sociality as instruments of reduction of social inequalities. In field of the contract law, the social function serves as a compass, as a guiding tool in the formalization of contracts, making a new principiologia arise within the General Theory of Contracts, and strengthening their social principles in order to prevent abuse in the relationship contract and limit the freedom of establishment of contractual content. The Civil Code of 1916 ignored the social function of contract and property. Shortly wont to the core values of the human person and feature distinctly individualistic, absorbed, too, values individualistic, patriarchal and conservative society of that time formed mainly by the lords of land, called colonels. With the advent of the Civil Code of 2002, the social function emerged as positive fundamental limit to freedom of contract, becoming the most important innovation in the Brazilian commercial contract law, demonstrating the concern about the state social order, even in the protection of private rights. As the contract can never be seen only in favor of a particular interest, since the public interest is undoubtedly insert in all types of existing contracts, it is necessary to resort to the Theory of Improvidence, also called the clause rebus sic stantibus, (being the stuff), which is port as an exception to the clause pacta sunt servanda, expressing the binding force of contracts, whenever there is excessive burden of a party, allowing the review of contracts, to restore the economic balance between the parties contractors, and the imperative need for the state interfere in the business, because in many cases the imbalance that already exists since the contract where there is clear dominance of one party at the expense of another. For accuracy of the discussion in legal field, there was the choice of theme. The research aims at studying the features of institutions and laws relevant to the material through bibliographic methods, evolutionary and historical-inductive, defined between the three chapters of work.