O descumprimento do dever pré-contratual de informação no direito civil

Abstract

The purpose of this study is to analyze the pre-contractual duty of information, imposed on contracting parties during the formative phase of a legal transaction, through the lenses of Brazilian law, with particular emphasis on its pathological aspect, i.e. the legal consequences in the event of non-compliance with the duty and the remedies made available by the Brazilian legal system to the party harmed by this violation in order to protect their interests. Firstly, the pre-contractual duty of information will be examined from a functional and structural point of view, investigating its normative source under Brazilian law, the role it plays in the formation of contracts and its structural elements, as well as its content and scope, especially based on the dynamic between the burden of self-information, on the one hand, and the duty of information, on the other. This study will then turn to examining the possible consequences of violating this legal duty, as provided for in the Brazilian legal system, through a comparative analysis of different figures, investigating their relationship with the pre-contractual duty to inform. Among the institutes examined, the following stand out: defects of consent, particularly the regimes of mistake and misrepresentation; events supervening the formation of the contract, such as contractual default, redhibitory defects and eviction; and pre-contractual liability arising from the so-called culpa in contrahendo. Finally, it will focus more closely on some controversial aspects of pre-contractual liability for breach of the duty of information, with special emphasis on the controversy over its legal nature; the problem of quantifying the damages incurred; and the possibility of cumulating compensation for pre-contractual liability with other remedies available under Brazilian law for failure to comply with the duty of information during the formative phase of the contract.