As cláusulas de hardship em contratos empresariais no Brasil

Abstract

This study aimed to discuss the treatment directed to the hardship clause in commercial contracts subject to Brazilian Law. The clause imposes on the contracting parties an obligation to renegotiate the terms of the agreement in the event of a supervening event that makes the obligations of one or more parties excessively onerous. Despite the great relevance of the topic of renegotiation in the current scenario of crisis globally experienced, it was noted that in Brazil there is not a satisfactory approach to this duty when derived from the will of the parties, which opened ample space for the present study. It is not clear, for example, how the performance and breach of the duty to renegotiate could be characterized, what their consequences are, and whether there are possibilities for the execution of the clause that imposed such duty. The relevance of the theme is justified by the observation of a desire of the parties, in equal contracts, to have legal certainty as to what they will be subject to when there is a duty to renegotiate in their contracts. The investigation of the study turned to a practical perspective, mainly seeking to understand the perception of law enforcers and practitioners about the instrument studied.