A mitigação dos prejuízos no direito contratual

Abstract

As a consequence of a breach of contract, the law requires that the promisor indemnify the damages sustained by the promisee. In this work, it is questioned whether the promisor should compensate the damages that have been increased by the promisee or even those that the promisee could have avoided with reasonable efforts. Ultimately, if the law imposes on the promisee the behavior to mitigate the damages caused by the breach. This problem has been analyzed in light of the common law and of the law of certain countries of civil law, in orderto subsequently frame it under Brazilian law. The general clause of objective good faith and the prohibition to abuse of rights lead to the conclusion that the law currently imposes on the creditor the burden to mitigate damages resulting from breach. From these rules withsignificant degree of indeterminacy, it was possible to derive the specific and more concrete rule of mitigation, which recognizes the right of the promisee to recover the expenses reasonably incurred in mitigation efforts. It has been identified examples of courses of actionthat are considered reasoable measures to be taken by a promisee to avoid the loss arising from the breach. It has also been examined promisees burden of carrying out covers and calculation of damages based on abstract or concrete substitute transactions. Based on thesefindings, the judgments existing in Brazil that mention the avoidability were analyzed. Finally, by using the economic analysis of law, it was found that mitigation rule promotes a more efficient contract law, as it avoids waste of resources economically and socially relevant, reduces transaction costs and fosters cooperation.