The breach of contractual duties in contemporary Brazilian civil law

Abstract

Starting from the finding that the figures of default in time and of non-performance have not been able to resolve a relevant part of the pathologies arising in the course of an obligational process born of social contact, the presentation set out to identify what default in time and non-performance consist of, which other devices might be useful in preventing and combating the harms originating in those fields, taking as its theoretical matrix a critical stance aligned with post-positivist currents of legal thought. Once it is established that the idea of default in time is etymologically bound to delay, and that non-performance is connected to the impossibility of rendering performance for a reason attributable to the debtor, it becomes feasible to accept that situations in which the duty to perform is discharged otherwise than agreed deserve a category of their own, here called imperfect performance. And since duties other than the duty to perform may be breached, such as those of informing, of keeping confidentiality or of protecting the contractual partner's assets, these were framed as breaches of general duties of conduct arising from good faith and from the social function of the contract.