O Abuso da Dependência Econômica nos Contratos de Distribuição: aplicação do Remédio do art. 51, § 2º, do CDC e a Manutenção do Equilíbrio Econômico do Contrato

Abstract

This thesis aims to study the abuse of economic dependence in distribution contracts. To do so, it seeks to identify the distribution agreement, under the typological matrix identifying the subjection of the distributor, comparing it to the type of agency and franchise surrounding him. Then, from the civil and constitutional perspective, the objective is to analyze the origins of economic dependency, verifying the parameters to the configuration of the abuse of economic dependence and rejecting the use of economic and protective market criteria for its characterization. In view of that, the abuse of rights is presented as an instrument able to deal with the abuse of economic dependence, given permission for functional analysis of subjective situation. Going through the criteria proposed by the art. 187 of the Civil Code, particularly the social and economic order, we understand as abusive the subjective situation that does not match the function (synthesis of the essential effects) of the distribution agreement, by virtue of the breach of correspondence and economic balance of the contract. Finally, on the occasion of the abusive act, we analyze the remedies provided by the Civil Code to deal with the abuse of economic dependence and, under the civil-constitutional perspective, we refer to the remedy of the art. 51, paragraph 2, of the Consumer Protection Code as a functionally appropriate instrument to the supression of abuse of economic dependence. To do so, we path the way for the identification of the ratio ('reason') of the remedy, as a protection instrument of the party in an inferior position, so as to allow its application also in distribution contracts.