Da proteção da qualidade das partes para a proteção do equilíbrio contratual
Autor | Robson Zanetti |
Cargo | Advogado. Doctorat Droit Prive Université de Paris 1 Panthéon-Sorbonne. Corso Singolo Diritto Privato Universitá degli Studi di Milano |
O legislador procurando dar um melhor tratamento a determinadas relações jurídicas procura proteger a parte mais fraca na relação contratual em virtude de sua qualidade ou então de seu interesse público. Desta forma, distribuindo a justiça mediante leis especiais, protege os trabalhadores e os consumidores e também procura preservar empresas pelo interesse público que elas representam. Se todos são iguais perante a lei segundo a Constituição Federal, como explicar esta proteção? Não vemos motivo, pois, nada justifica que um dos contratantes somente seja protegido pela sua qualidade, tal posicionamento pode se revelar arbitrário. Desta forma, deve-se buscar o porquê desta proteção para sabermos até que ponto ela se justifica. A proteção deve ocorrer para que haja um equilíbrio entre as partes contratantes, ou seja, saímos de uma justiça distributiva, que está somente preocupada com a qualidade do contratante e passamos para uma justiça comutativa, ou corretiva segundo Aristóteles, onde na circulação de bens e serviços, deve se buscar o equilíbrio contratual. O que mais interessa aqui é o equilíbrio contratual e não a qualidade das partes, pois, as partes são protegidas justamente para que exista o equilíbrio contratual...
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