A pós-eficácia hermenêutica dos documentos pré-contratuais não vinculantes

Abstract

The legal treatment of the pre-contractual period, also called negotiations, has acquired notable practical relevance, specially facing the technical and logistical complexities that mark the business transactions in an increasingly globalized world. Going beyond and merely descriptive analysis of the many forms that can be assumed by the material support of the declarations issued in the negotiations period i.e., of the documents produced, namely drafts, letters of intent, memorandums of understanding, mere letters , the richness of this pre-contractual phase resides in the legal effects that (invariably) arise from these diversified and atypical forms of declarations of will, and, consequently, from private autonomy. Among these effects which ultimately derives from a functional resignification of private autonomy , the hermeneutical in relation to the final contract stands out, i.e., as a potential circumstantial interpretational element of the content of the contract eventually concluded by the negotiating parties, in sight of the hermeneutical rules provided by the Brazilian Civil Code of 2002. The potential attribution of interpretational effects to the referred documents leads to important legal aspects that will be scrutinized in the course of this study, such as the configuration (or not) of a contractual declaration of will and the legitimate confidence that can eventually be inculcated in the declaration s recipient. Parting from the premises and concepts acquired, the study creates and investigates critically, in its last part, some hypothetical and ideal situations all of them derived from practical cases taken from the jurisprudence in which the content of the contracts instrument can dialog with the previous material support, in order to delimit the potentialities and limits of this dialectical relation.