Resumen

BRANCO, Gerson Luiz Carlos. CONTRACTUAL FREEDOM AND ITS FUNCTIONALIZATION: METHODOLOGY AND LANGUAGE USED BY THE BRAZILIAN CIVIL CODE DRAFTING COMMISSION. Vniversitas [online]. 2011, n.123, pp.347-371. ISSN 0041-9060.

The crisis in contract's concept has caused debate on the new conformation of contractual freedom and the limits of its functionalization, particularly in european law and latin american countries. Therefore, this article addresses the contractual freedom and its functionalization from a historical perspective, through the studies produced by the Commission that has elaborated brazilian Civil Code and that has introduced in it an express provision on the contract's social function. This article is a reflection that seeks to analyze the ideas and principles adopted from the recognition of social function as a general clause in contract law, as well as the consequences of this rule on contractual freedom. The methodology used was bibliographic research and analysis of the Code itself. In conclusion, it was found that this general clause places the contract at the service of the sociality principle, that, in turn, guides the contract's legal models. Furthermore, the social function of the contract is also placed in Civil Code in a complementary, not antagonistic, position towards the freedom of contract, which is integrated into business activity.

Palabras clave : Contractual freedom; social function of the contract; private autonomy.

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