Swaps: uma análise jurídica

Abstract

The legal aspects of swaps transactions have not yet been satisfactorily clarified in the literature. The debates on the matter, often affected by the economic practice, have not been able to establish a clear legal regime, or a proper construction for the arrangement of obligations which bind the parties to a swap. In this study, we found relevant practical aspects which made possible to systematize the interests, motives and functions associated with swap transactions. From the diagnosis of the economic logic, of the gains aimed by the parties, and especially the socioeconomic function performed by each of the contracts examined, we have found certain legal features, contractual and obligational, which made possible an explanation pursuant to the law. The main contracts and swap transactions identified were segregated into three categories - the currency swaps, the index swaps, and the credit default swaps (including total return swaps), as treated in the economic literature. It was found that, under a legal perspective, the swaps do not provide for actual swapping of assets, reason why this research proposes a change of nomenclature, in order to reconcile the legal and economic aspects they refer to. It was presented the fundamentals for the currency swaps being classified as nonstandard contracts; index swaps and total return swaps, as non-standard contracts for differences; and the credit default swap as a put option. Thereafter, the swaps were duly inserted in the chain of contracts enabled by the Over-the-Counter markets of CETIP and BM&F, in order to complete a proper legal analysis, addressing the main dimensions and aspects of those transactions.