Retenção pecuniária e autotutela nos contratos empresariais

Data
2017-11-06
Orientador(res)
Pinto Junior, Mario Engler
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This paper investigates correlation between pecuniary retention hypothesis and self-help dispositions, as found in most corporate agreements. It is based on research of several mechanisms, as generally used and expressed by the contractual terms agreed between the parties. For such purpose, the definition of pecuniary retention would be suspending or withholding, temporarily or definitely, in whole or in part, the payment of amounts due by the contracting party to the contracted party. This resource is widely used within corporate agreements. Format and contents thereof are generally expressing past situations, as experienced by stakeholders, who use them as alternative solutions for preventing delays or reducing breach of contractual obligations by the parties and, in most cases, ensuring the continuity and completion of the contract as desired originally, benefitting the contracting parties, third parties and the society at large. The paper evaluates the adequacy of these practices in light of Brazilian legislation and of contractual law principles, taking into consideration their matching with the utmost object, as agreed between the parties. These self-help mechanisms are regularly practiced among contractors, and although not usually disputed, are designed according to courts interpretations. The first part of the paper defines the pervasive empirical survey details and methodology. Follows a description of the usual pecuniary retention mechanisms, divided into four chapters – withholding by legal provision; withholding as guarantee for contract completion, withholding as a result of infringement of contractual obligations and withholding for preventing default of extra contractual obligations – describing in detail the practices, the applicable legislation and suggesting a few adjustments, to help sustain their exercise in case of a court judgment. The conclusion reviews the relevant aspects of the usual practices, their legal basis and key points, followed by a few recommendations on how to use such mechanism in corporate agreements, with the purpose of providing reference for those who are in charge of drafting these contracts.


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