Possibilidades e limites da revisão contratual no cenário pandêmico

Abstract

In the present work, we chose to discuss the possibilities and limits of judicial review of contracts in the pandemic. It is questioned whether the circumstantial changes supervening the signing of the contract, caused by the pandemic, justify changes in certain contractual terms. It focuses, considering the doctrine and legal provisions on the subject, on the flexibility to promote contractual revisions. The legal nature of the COVID-19 pandemic and the possibility of its variation according to the specific case faced, given the adequacy between the legal text and the factual context. The idea that permeates the research is that, for the pandemic to be understood as a fortuitous event or force majeure, there must be impossibility of provision, which entails the resolution due to involuntary default. It is understood that if the feasibility of complying with the obligation remains, the pandemic is an event that generates excessive burden for one of the contracting parts, which culminates in the contractual review. Focusing on the judicial review of contracts, its possibility is defended, listing limitations to which it is submitted. The understanding adopted is that, when promoting the review of contracts, the particularities inherent to each of the contractua l relationships must be considered, always aligning the applicable standard to the specific case. Considering court decisions, the legal system and doctrinal exposures, it is argued that judges should pay attention to factors that guide and limit contractual review: the distribution of the burden must be equal; the activity performed under the contract, its core, must have been effectively reached by the supervening scenario; the loss suffered and the impacts on the party's economic -financial capacity must be robustly proven.