Covid 19, desequilíbrio contratual superveniente e o dever de renegociar: dos contratos de locação

Abstract

This study aimed to investigate how the Covid-19 pandemic affects contracts, both its impact and its scope and whether such effects and consequences can be characterized in the Brazilian legal system as supervening facts, considered extraordinary and unpredictable, giving rise to renegotiation contractual. Therefore, it was necessary to investigate the Theory of Unpredictability and its applicability in the Brazilian legal system, as well as issues related to the mandatory force of contracts. Such an approach was necessary to understand how the duty of renegotiation finds support in the face of the unpredictability and supervenience of facts that generate contractual imbalance, such as the economic consequences of the pandemic that was installed due to the dissemination of the new coronavirus. The research was classified as deductive, descriptive and bibliographical. It was found that the pandemic cannot be understood as a fortuitous event or force majeure. However, once the characterizing requirements and the foundations of unpredictability and excessive onerousness that guide the Theory of Unpredictability are proven, the review of contracts is justified, in order to re-establish the balance between the contracting parties. And in the event that an amicable settlement between the parties is not possible, the Judiciary, with fulcrum on the provisions that guide the contractual review and the Theory of Unpredictability in national law, must change the contractual rules to, repeat, re-establish the balance between the parts.