Revisão da cláusula penal: critérios para uma readequação funcional

Abstract

The present work aims to analyze, under the functional perspective, one of the pillars of the doctrine of civil-constitutional law, the three hypotheses of judicial (or arbitration) review of the penalty clause in the Civil Code, all reductive, namely: (i) reduction to conform to the amount of the principal obligation; (ii) proportional reduction in case of partial fulfillment of the obligation; and (iii) equitable reduction when there is a manifest excess of the contracted amount, in view of the nature and purpose of the contract. Therefore, in the first chapter, premises were established about the structure of the types of penalty clause - moratorium and compensatory - and the functions that each one of them can assume, always one at a time. In the second chapter, a critical analysis of the doctrinal and jurisprudential interpretation of the three reduction hypotheses was made, pointing out the contractual balance as a fundamental principle of the judicial review of penalty clauses in equal contracts. In the final chapter, interpretative proposals were made for the three hypotheses, concluding, in short, that the limit of the amount of the principal obligation lacks a function in the current legal system, however, to be ignored, it would require legislative reform. Its application, at least, must have as a parameter for analysis the unit value of the penalty, and not the accumulated amount; and does not prevent the creditor from receiving, after the breach, a higher amount than the principal obligation, as a result of the sum of the penalty with the obligation in natura or its money equivalent. The reduction of the penalty because of partial performance is only possible when that performance meets, to some extent, the other party's useful interest, and must be reduced proportionately to that attendance. Finally, the equitable reduction based on a manifest excess of the penalty clause can only occur when there is an event after the formation of the contract that makes the penalty excessive, because it cannot be considered too elevated without the original balance of the contract having been affected.