Tutela específica das obrigações contratuais: a exceção de desproporcionalidade e sua aplicação no direito brasileiro

Abstract

The objective of this work is to investigate whether the right to demand specific performance of contractual obligations should be limited by an analysis of proportionality between the benefit sought by the creditor and the sacrifice required by the debtor. In this sense, it carries out theoretical research, of legal-dogmatic and comprehensive-comparative type, backed by qualitative data from primary and secondary sources of the science of Law. The investigative trajectory begins with the presentation of the elements responsible for verifying that, in Brazilian law, specific protection is the preferred remedy for breach of contract. It is then showed that the problematized theme, referring to the exceptional limitation of specific performance based on a cost-benefit control, remains controversial in national debates. In search of new perspectives for solutions, the text presents a study of Comparative Law, which highlights the tendency of Civil Law systems to refuse specific performance that would bring disproportionate results. In the end, it is concluded that the general clause on the abuse of rights, understood in its facet of prohibiting the unbalanced exercise of legal positions, grounds the application of the disproportionality exception in the context of Brazilian law.