Os deveres de conduta no contrato de trespasse

Abstract

Considering that contractual relations, from their functional aspect, go beyond mere performance of the obligations prescribed in the agreement, this study investigates the parallel set of duties – also known as ancillary or instrumental duties – which reflects the legitimate expectations of the parties within the context of a sale of business contract, the agreement by which a business (including its goodwill, tangible and intangible assets) is sold. By articulating dogmatic arguments and legal practice, one conceives thematic axis that lead to the conclusion that it is possible to terminate the agreement if parallel duties of conduct, underpinned by good faith and trust, are not complied with, which may significantly impact the personal or proprietary interests of either party. Accordingly, the focus of the subject-matter under scrutiny is the dynamic perspective of the interests underlying the corporate relationship – the sale of business contract – molded into economic rationality, trade usage and custom and into the risks inherent in the business and that must, however, be interpreted in alliance with good faith, which legitimates a demand for a conduct compatible with cooperation towards performance of the agreement, in order that the expectations of the parties are met and that the agreement accomplishes its social function. The predominant technique adopted in this scientific research is the identification of abstract concepts subsumed under the mutual agreement entered into within the dynamic corporate context – the sale of business contract – and that, when taken to court on the basis of non-compliance, must be subject to an analysis that weights the strict observance of the cardinal principles of the agreement, as framed in the Brazilian Civil Code, and the rules of interpretation of commercial contracts, whose major priority is preserving the stability of both the market and the economic-legal relations