Vulnerabilidade contratual e mecanismos interventivos nas relações privadas: um estudo aplicado ao contrato de franquia

Abstract

The purpose of this paper is to investigate the way in which the contractual vulnerability may affect the interpretation and application of the main intervention mechanisms applied to franchising contracts. Such mechanisms are described as: (i) the contractual dissolution and review, (ii) the invalidation of certain clauses commonly placed on franchise contracts and (iii) the reduction of contractual fines charged due to the applicability of penalty clauses. Considering this purpose, the study started with an analysis of the contractual vulnerability’s structural profile, which is the result of a weighted analysis of vulnerability factors investigated in concrete cases. The called vulnerability factors could be described as follows: (i) stricto sensu restriction on the freedom to contract; (ii) restriction on the freedom of choosing the other contracting party; (iii) restriction on the possibility of negotiating the contract’s content (or contract adhesiveness); (iv) contractual dependency. Subsequently, this study proceeds with an analysis of the contractual vulnerability applied to franchising contracts, taking into consideration such contract’s essential elements, as well as the minimum unit of effects extractable from the franchising relationship. More specifically, this paper focuses mainly on two vulnerable factors usually present in franchising contracts - adhesiveness and contractual dependence - were studied. Finally, the manners by which contractual vulnerability could possibly assist the interpreter on the management of the intervention mechanisms commonly applied to franchise contracts were analyzed. Aiming to identify the intervention mechanisms most applied to such contract and in order to present results as close as possible to the reality, precedent researches were carried out mainly on the Rio de Janeiro State Court, on the São Paulo State Court and on the Superior Court of Justice’s online research platforms.