O cumprimento da palavra dada: promessa de doação, consideration e filosofia dos contratos

Abstract

The present research aims to investigate possible philosophical justifications for the understanding that has become settled in the Brazilian higher courts concerning the refusal to grant judicial enforcement of donative precontractual agreements. According to this line of thought, these promises cannot be enforced on the grounds that such transactions lack a present animus donandi and that the coercive enforcement of a gratuitous obligation would generate undesirable consequences incompatible with the very notion of liberality. However, donative precontractual agreements made within the context of family law, such as in property division agreements intended to benefit children, are deemed enforceable due to an alleged hidden reciprocity that emerges when the broader transactional context is taken into account. This position, nonetheless, lacks grounding in Brazilian law, since the 2002 Civil Code does not provide an exception to the general regime of preliminary contracts for gratuitous transactions, nor does it list reciprocity as a requirement for the formation of a contract. This requirement, however, resembles the doctrine of consideration developed in the common law, an element designed to distinguish legally binding promises from those lacking obligatory force on the basis of reciprocity of obligations. From this observation, the research examines whether the leading philosophical theories of contract law in the common law tradition provide a justification for demanding reciprocity as a requirement for contractual formation, including in Brazil, insofar as they may offer arguments for identifying values underlying private law as a whole, regardless of jurisdiction, through moral or normative concepts.