A eficácia dos direitos fundamentais face ás relações privadas contratuais.

Abstract

Fundamental rights are considered by the doctrine as essential worthy of individual existence. However, it is known that one of its features is its the existence of limit, in other words, do not absolute character. This study aims to analyze the effectiveness of such rights against the contractual private relations, from the understanding of the liberal evolution constitutionalism to the social, because as we know the modern constitutional hermeneutics promoted a new interpretation of civil standards, so the existential human issues take priority over property issues, which led to the emergence of the Horizontal Effectiveness theory. In the same time, while preaches the guarantee and protection of public subjective rights in relations between individuals, it raises the question of autonomy, also constitutionally protected. Thus, there is a collision between principles, one of them prevail over the other. So the answer to this question is left to the case law, that it must adopt as a solution technique using the weighting, where the interpreter, analyzing the case, determines which interest should prevail, seeking to ensure maximum protection of goods conflicting, restricting them minimally. Therefore, it questions what mechanism should be adopted to reach this balance, considering the use of the principle of proportionality as na essential mean to the resolution of the clash, since it is necessary that none of the rights are completely unobserved. To achieve the goals of this research, the deductive method of approach is used, and as methods of procedure the historical-evolutionary and comparative. And as technique of research, literature, through the use of legislation, the doctrinal and jurisprudence, and other documents available in electronic media on the subject. Based on the foregoing, although Brazilian legal system confers to fundamental rights the status of entrenchment clause, before certain specific situations in which there is confrontation between principles, one should be mitigated over the other. However, it is required to weigh the rights in question, in order to adapt and preser the legal interests protected, so that the solution of the collision is achieved with the maximum realization of the rights in tension and minimal restriction of those.