Estudo sobre a cláusula geral de concorrência desleal

Abstract

The purpose of this initiative was to review the legal basis of fight against unfair competition. Emphasis was given to the legislative technique of general clause, a means employed for introduction of loyalty in competition, the normative hypothesis of which is formulated by concepts intentionally vague and imprecise, with the advantages of discarding semantic immobility and allowing the opening of the legal system to other levels of the social whole. Several theories interpretative of competitive loyalty were analyzed: the moral or ethical theory (remittance to the moral judgment of generality or to the moral judgment of the professional category); the conventional theory (remittance to corporate usages and customs); Marchetti s economicist theory (remittance to economic criteria); Ghidini s theory of social utility (remittance of the social utility principle); political and economic theory (antitrust conception of loyalty), among others. All theories reviewed contribute for the understanding of competitive loyalty, evidencing the three evolutional stages of the matter: the first stage of conception of loyalty before the competitor ; the second stage of loyalty before consumer ; and the last and most modern stage of market loyalty . We can identify, in all theories, the moral or ethical fundament (through the criterion of generality), which constitutes the essence of the matter. As an element of integration of the theories and rationality control of the matter, case law arises, a task to which the legal writing is invited to contribute: the data bank of the cases analyzed by the case law (and by the legal writing), gathered in groups for the identity or similarity of fundaments, provides for the creation of referential legal models applicable to new concrete cases, thus fulfilling to some extent the semantic imprecision of the general clause of competitive loyalty