Do Direito Contratual Liberal Ao (Um Pouco) Social: Apontamentos Sobre a Imprevisão Contratual E Os Direitos Fundamentais

Abstract

The Liberal State was response to the bourgeoisie in relation to excessive state intervention in private affairs. Therefore, the right to develop and eventually were revealed several institutes which were considered sacred, such as private autonomy and pacta sunt servanda. In the early twentieth century, with the rise of the welfare state, eventually need that this ended up attracted to itself the function of reducing the social divide, resulting from the complete absence of intervention. Thus, the autonomy of the will suffered drastic change with the advent of the new constitutional text, which brought to the foreground the value of the human being, living in a community and the bearer of dignity. With this, several principles have come to focus on private legal relations-horizontal effect of fundamental rights especially because under the old optical civilist, the supreme ideal-especially in harvest contract-was the unlimited autonomy of will, fixed and frozen in time by institute of pacta sunt servanda. Thus, with the advent of the present Civil Code in 2002, the Brazilian legal system has taken another step in the relativization of these old institutions, now losing ground to the human principles positivized, here in focus, by constitutional legislation, focusing directly on contracts. Thus, looking up, using the deductive method of approach and technique for the research to bibliographic on secondary sources, analyze, based on the doctrine, legislation and jurisprudence, the theory of excessive burden as an expression of human dignity and fundamental rights in legal relationships between individuals.