Cláusulas morais em perspectiva funcional: controle valorativo de sua estipulação e execução no direito brasileiro

Abstract

This master thesis aims to delineate, in a functional perspective, the compatibility and the legal discipline of the moral clauses in the Brazilian legal system, by identifying the interests behind its stipulation and the function it exercises within the scope of the contracts in which they are inserted, notably in advertising relations. The first chapter investigates the legal framework of this figure, through the analysis of the origin and the definition of “moral clause”, as well as evaluating preliminary questions to the validity of this type of commitment. The second chapter discusses the evaluative control of moral clauses, with the enunciation of abstract and concrete parameters for the evaluation of the clause by the interpreter. The third chapter, finally, is oriented towards understanding the effects of breaching the moral clause, notably with regard to the repercussions that it may have on the maintenance of the contract and on the exercise of the resolutive right by the parties (especially in cases in which it is entered insto as an express resolutive clause) and the nature and extent of the losses and damages caused by the breach of the clause. The thesis uses, as a theoretical framework, the civil-constitutional methodology, making use of the logical-deductive method, based on an eminently bibliographical research, having Brazilian law as the object of analysis.