A formação progressiva do contrato: uma análise da formação do contrato de compra e venda secundária de participação societária segundo a teoria do contrato sem negócio jurídico

Abstract

Stock purchase contracts are relevantly complex as they are planned, structured, and settled after a considerable negotiations period that evolves various stages. In each stage, different documents are produced, exchanged, and even signed: letters of intent, memorandum of understanding, non-disclosure agreements, e-mails, messages in applications. These documents provide the parties certainty about what has already been the object of deliberation for them to be able to continue discussing other relevant matters to be agreed. However, in theory, there is still no contract. It is at the end of the negotiations that the definitive contract that regulates the entire relation of the parties in that operation is signed. In this context, the research sought to understand how this type of contract is formed to better protect situations in which the relation is broken even being the negotiations in an advanced stage or even when, before the signing of the definitive contract, a party performs a consideration related to the object of the negotiations. From the analysis of the classic doctrine of contract law, it was concluded that it is insufficient to adequately protect various relations, as it is based on the concept of contract as a result of a legal transaction, linked to the declaration of the will of the parties. Furthermore, it was found that the contract must be comprehended as an activity inserted in a contractual process. In this context, it was learnt that the contract is a legal institute created to regulate an underlying economic operation that exists independently of it. From these grounds, it was found that a contract can be formed even in the absence of a legal transaction. About the contractual type, object of the research, it was found that the formation of this contract can be identified through the expression of some 'indexes of type' in the contractual process which demonstrate that the qualified social contact has become so tight that it has generated an obligational bond. Lastly, it was analyzed how the contract formed without legal transaction should be interpreted and protected, concluding that it is essential to consider the objective good faith, private autonomy, and the fundamentals of the economic analysis of law.