Potencialidades funcionais das cláusulas de não indenizar: releitura dos requisitos tradicionais de validade

Abstract

The purpose of this paper is to revise the invalidity requirements traditionally set for exemption clauses, which relates to: (i) respect for public policy; (ii) non-applicability of the clause on the main obligation of the contract and (iii) non-applicability in the event of willful misconduct or gross negligence, in order to protect the functional potentialities of the clauses as risk management instruments in business practice. To do so, it is proposed to systematically analyze such assumptions of validity for the penalty clauses with limiting profile, the clauses limiting the obligation to indemnify, the clauses excluding the obligation to indemnify and the clauses limiting the contractual object, here enunciated in progressive degree of delimitation of credit tutelage. Thus, the re-reading of the validity requirement regarding public order, such as the lato sensu tutelage worthiness to which the four kinds of clauses must be submitted, in the face of a patent vulnerability of the creditor, as in consumer relations, when referring to material and moral damages resulting from injury to the human person and if in violation of rules that govern the limitation of the duty to indemnify, such as the normative mosaic regarding the contract of transportation. It was also undertaken the re-reading of the validity requirement regarding essential obligations, proposing an examination in the light of its origins in the theory of fundamental breach of English law and in the notion d'obligation fondamentale of French law and the concept of cause, in order to conclude that the requirement only applies to clauses limiting the contractual object, not to exemption clauses or to penalty clauses. Finally, the validity parameter regarding willful misconduct was addressed, suggesting its systematic interpretation in order to encompass exemption clauses and penalty clauses with limiting profile and the promotion of spin in its analysis, from the assessment of the degree of fault in the contractual default to the assessment of asymmetric information at the time of the conclusion of the clause and of acting in a notoriously abusive conduct by means of the practice of an illicit act at the moment of effectiveness of the clause, in order to demonstrate the validity of the clauses regarding gross negligence and to identify the functional potentialities of the clauses beyond subjective contractual liability, when examining its lawfulness within the scope of tort, objective liability and pre-contractual liability