Tutela externa do crédito na perspectiva civil-constitucional: fundamentos, pressupostos e consequências da responsabilidade civil do terceiro interferente

Abstract

The re-reading of the relativity principle, typical of classical contractual theory, makes it possible to perceive the possibility of contract interference in relation to third parties and, on the other hand, the influence of third parties in the contractual relationship. Based on this observation, it is curious to seek mechanisms that prevent this exchange between parties and third parties from hindering the accomplish of the benefits assumed in the agreement between creditor and debtor. It is necessary to find adequate grounds to support the possibility of civil liability of the third party. The doctrine still diverges on the fundamentals of the external protection of credit, which has been attributed to the principle of the social function of the contract, to the objective good faith and to the prohibition of abuse of rights. Once the external protection of credit has been established and justified, there is a need to highlight the requirements for the liability of the third party to the contractual default. Such accountability is necessarily permeated by an analysis of the conflict between freedom and solidarity - both consecrated by the constitutional principle of human dignity - so that the concrete prevalence of solidarity over freedom is imposed for the third party's civil responsibility. Once the possibility of the third party's liability is recognized, it is important to clarify important aspects regarding third party liability, such as contractual or non-contractual nature, the need to prove the third party's intentions, the solidarity between the obligations of the debtor and third parties, the limitation of compensation for damages suffered by the creditor to the amount stipulated in a criminal clause, the possibility of specific execution of the contract breached and the duality of prescriptive time limits as to the claim for compensation of the creditor regarding the debtor and the third party.