ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 Athens Institute for Education and Research ATINER ATINER's Conference Paper Series LAW2012-0361 The Construction of Precontractual Liability as a Link between Social Contact and Objective Good Faith in the Brazilian Legal System Christian Sahb Batista Lopes Professor Federal University of Minas Gerais Brazil Luciana Helena Gonçalves Student Federal University of Ouro Preto Brazil 1 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 Athens Institute for Education and Research 8 Valaoritou Street, Kolonaki, 10671 Athens, Greece Tel: + 30 210 3634210 Fax: + 30 210 3634209 Email: [email protected] URL: www.atiner.gr URL Conference Papers Series: www.atiner.gr/papers.htm Printed in Athens, Greece by the Athens Institute for Education and Research. All rights reserved. Reproduction is allowed for non-commercial purposes if the source is fully acknowledged. ISSN 2241-2891 22/11/2012 2 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 An Introduction to ATINER's Conference Paper Series ATINER started to publish this conference papers series in 2012. It includes only the papers submitted for publication after they were presented at one of the conferences organized by our Institute every year. The papers published in the series have not been refereed and are published as they were submitted by the author. The series serves two purposes. First, we want to disseminate the information as fast as possible. Second, by doing so, the authors can receive comments useful to revise their papers before they are considered for publication in one of ATINER's books, following our standard procedures of a blind review. Dr. Gregory T. Papanikos President Athens Institute for Education and Research 3 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 This paper should be cited as follows: Lopes, C.S.B., and Gonçalves, L.H. (2012) “The Construction of Precontractual Liability as a Link between Social Contact and Objective Good Faith in the Brazilian Legal System” Athens: ATINER'S Conference Paper Series, No: LAW2012-0361. 4 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 The Construction of Precontractual Liability as a Link between Social Contact and Objective Good Faith in the Brazilian Legal System Christian Sahb Batista Lopes Professor Federal University of Minas Gerais Brazil Luciana Helena Gonçalves Student Federal University of Ouro Preto Brazil Abstract In this study we aim at demonstrating the possibility of the application of a German theory, the social contact theory, in the Brazilian legal system. In this manner, we will address the origin of the social contact theory, a relevant German case law that approaches it and we will also discourse about objective good faith, culpa in contrahendo and precontractual liability, legal conceptions which are to some extent related to the social contact theory. By presenting this analysis, we will expose, through the demonstration of the similarities and differences between these institutes and the theory in focus, how the social contact plays a role in the expansion of the legal protection of the individuals, not in a specific context, the contractual phase, but in all other contexts in which a relevant social contact is identified. The application of this German theory in the Brazilian legal system is substantially important, as it emerges from the bosom of society and safeguards the society itself, becoming a tool for seeking fairness in judicial decisions involving obligations. This is precisely what the Brazilian case law indicates, by accepting and applying this theory, and will be shown in this study. Keywords: Social contact; objective good faith; culpain contrahendo; precontractual liabilty. Contact Information of Corresponding author: Christian Sahb Batista Lopes: [email protected] Faculdade de Direito da UFMG. Av. João Pinheiro, 100, Belo Horizonte, MG - 30130-180 Luciana Helena Gonçalves [email protected] and [email protected] Departamento de Direito. Universidade Federal de Ouro Preto. Ouro Preto, Minas Gerais, Brasil. 5 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 Introduction The Professor Couto e Silva explains that the social contact, a German concept, is the source of all the wider obligations, as a representation of life in society.1 The International Encyclopedia of Comparative Law contains the approach of the social contact being the basis of protective duties and diligence at a time when the contract does not exist. That corresponds to the duty of care between a physician and a patient in the common law of England2. Thus, it is relevant to discuss the social contact as a trigger for precontractual liability. How does it work in Brazil? This study also presents a comparative approach, because the core of the discussion meets support in a German institute expressed in the German Civil Code3, culpa in contrahendo, an abstract concept which runs through several legal systems, but it is not expressly contained in the Brazilian law, for instance. That shows a gap in our legal system, which is supplied by an indeterminate concept of objective good faith, a principle which guides the Brazilian Civil Code4. This study aims at analyzing the implementation of such an institute in the Brazilian law, as the liability case between a famous tomato sauce manufacturer and farmers who received seeds and cultivated them, confident that their production would be purchased. This case shows the necessity of a regulation which emerges from the bosom of the society and safeguards the society itself. Therefore, the precontractual liability shows to be relevant not only to the international trade, but to the possibility of an access to lay population to an equitable and judicial solution. We start this article with the quote below, which brings us to the core of our study, in view of the emergence of the social contact theory. In this manner, we can verify that there is a justification for the non-existence of the statement of intent in the examples below, precisely because the social contact theory creates an obligation. Thus, these examples demonstrate that: ‘To assert simply that contracts are a result of a statement of intent is not enough, there is the risk of slipping into a blind voluntarism of the nineteenth century, which seeks the contract as a mere phenomenon of 1 Zanitelli, L. M. The notion of social contact, from sociology to C. do Couto e Silva's unitary theory of the obligations. Available at http://www6.ufrgs.br/ppgd/doutrina/zanitel1.htm [05 May 2012]. [In Portuguese]. 2 David, R. & Tunc, A. (1983). International encyclopedia of comparative Law.V.11. Leiden:Martinus Nijhoff Publishers, p.98. 3 Germany. German Civil Code. ‘Ausfertigungsdatum: 18.08.1896. Bürgerliches Gesetzbuch in der Fassung der Bekanntmachung vom 2. Januar 2002 (BGBl. I S. 42, 2909; 2003 I S. 738), das zuletzt durch Artikel 1 des Gesetzes vom 27. Juli 2011 (BGBl. I S. 1600) geändert worden ist’. Available at: http://www.gesetze-im-internet.de/bgb/ [05 May 2012]. 4 Brazil. Law no. 10.406 of January, 10, 2002. Establish the Brazilian Civil Code. Available at: http://www.planalto.gov.br/ccivil_03/leis/2002/L10406compilada.htm [05 May 2012]. 6 ATINER CONFERENCE PAPER SERIES No: LAW2012-0361 the will. In fact, what statements exist, when a person takes a bus or requests to connect electricity or telephone in his or her house?’1. The social contact theory The German author Günter Haupt is at the heart of the social contact theory, creating a theory originally about obligational relations, based on a social behavior (another expression referring to the social contact). This theory aims at supporting the mass relations of the contemporary industrial society. Therefore, it admits the creation of types of contractual relations based not on the classical dogma of the will, but on a simple typical behavior (cited by Karl Larenz)2. As an example of the application of the social contact theory, we have the performance of the German Federal Court of Justice, the Bundesgerichtshof (BGH)3, related to Hamburg’s city center, namely, there were not enough spaces to parking, thus, the city transformed parts from a public location into a parking lot, creating an obligation of a parking fee payment. In this case, the defendant left his vehicle repeatedly in this parking lot, and stated to the invigilator at the service of the company that he refused the vigilance and would not pay the parking fee. The defendant justified he relied on the prerogative of a public use of the location. The German Federal Court of Justice decided against the defendant, and ordered him to pay the parking fees, by arguing that the individual cannot avert the juridical consequences of his or her own action. In this way, according to Karl Larenz: ‘The BGH judged that the internal disposition of the defendant is not relevant nor when he, as in this case, manifested it from the beginning, openly to the invigilator. With this, the BGH expressly followed the doctrine, first presented by Günter Haupt and later developed by myself. This doctrine, said the BGH, directs, not ignoring the reality of the life in relation to the current mass circulation of goods, to a result which corresponds to a reasonable way for expression of these typical behaviors4. Therefore, we concluded by Haupt's theory that: ‘Instead of the presentation of a ticket, in the area of the means of public transport, it is the real use of the means of transport which creates the contractual relationship, and this is applied for both parties’5. 1Fiuza,C.(2007). ‘For a redefinition of the contractuality’. In: Oliveira, A (ed.), Civil Law: Current Issues II. 253- 266. Belo Horizonte: Del Rey. [In Portuguese], p. 254. 2Larenz, K. (1958). Lehrbuch des Schuldrechts.V.1.Berlin and Munich: C.H. Beck, p. 33. 3Larenz,K.(2006) ‘The creation of privies by typical social behavior (1956)’.GV Law Journal 2 (1): 055-064, p.