CONTRACTUAL RELATIONS AND THE FUNCTIONALIZATION OF CIVIL LAW

Abstract

The functional perspective of legal institutes provoked a revision of the traditional, static and timeless dogmatic, limited to the structure of legal categories. The structure of business models is defined by the interests that are intended to be protected, with a view to the purposes to be achieved. In this perspective, the content and role of the social function of the contract in the Brazilian legal system are justified within the scope of the process of functionalization of legal facts, thus establishing the qualification of contractual models based on the practical-social function intended in a specific business activity. The qualification of contractual types based on their function expands the social control of economic activity. In this way, private autonomy and contractual freedom receive special protection from the legal system, imposing on the contracting parties, in addition to the pursuit of their legitimate patrimonial interests, the duty to protect socially relevant extra-contractual interests achieved by the legal transaction. Such should be the interpretive north of the so-called Law of Economic Freedom. After all, the functionalization of negotiating autonomy is shaped by constitutional legality and the social function, for this reason, reconfigures contractual freedom, subordinating the freedom of contractors to the principles of substantial equality and social solidarity.