Mayara Crespo Neppe
Lawyer at Marcos Martins Advogados
Contracts are governed and interpreted by general clauses: guiding rules, of a generic and abstract nature, which adapt to the evolution of society and which must be observed by the contracting parties, at all contractual stages, as well as by judges, when deciding on a claim of contractual origin.
One of the main general clauses, or also called a general principle of law, is objective good faith, a duty imposed on contracting parties to act correctly, according to the uses and customs prevailing in the community, and to act loyally and uprightly, taking into account the interests of the other party, both in the preliminary negotiations and during the formation and fulfillment of the contract¹.
This general clause is set out in the Civil Code and determines that the contracting parties are obliged to observe the principles of probity and good faith, both in the conclusion of the contract and in its execution².
Therefore, objective good faith represents an ethical standard of conduct, from which derive ancillary duties, such as care, respect, probity, collaboration, information, trust and acting reasonably. All these efforts must be made by the parties, especially in the execution of the contract.
In a more in-depth analysis of the application of the general clause of objective good faith, it is certain that it has developed in such a way that it is possible to distinguish some figures arising from it, which help to make it a reality.
Two of these are supressio and surrectio, which make the trust between the parties to the deal compatible with the time factor.
Suppression represents the situation in which a party loses the prerogative to exercise a certain right because it has not exercised it for a long period of time, giving rise to trust and expectation on the part of the counterparty that it would no longer exercise that right.
On the other hand, surrectio consists of the birth of the right to see some obligation repeatedly adopted by the other party exercised, due to having founded trust and expectation of having acquired this prerogative after a certain period of time.
Therefore, the parties must honor and enforce the rights and duties arising from the contract signed, otherwise, on account of and in the name of objective good faith, they will no longer be able to exercise the rights that they have not exercised demonstrably, unquestionably and without reservations for a long period of time, or be obliged to fulfill an obligation that, even if not initially provided for in the contract, has been adopted for so long without reservations that it becomes enforceable by the other party.
It is possible to verify the admissibility of the above-mentioned institutes in the Civil Code, in its article 330³, which states that payment repeatedly made elsewhere makes it presumed that the creditor has waived what was provided for in the contract.
In the same vein, we can state that payment repeatedly made on a date other than the one provided for in the contract, without objection from the party receiving it, gives rise to the presumption that they validly accepted it on that other date, in line with these institutes, which should guide the contracting parties in order to preserve the security of the legal deal.
Another example is the readjustment of values according to monetary correction. Let’s suppose there is a rental agreement in which a clause provides for the annual adjustment of monthly rents. If the contract has been in force for twenty years, it could be said that there have been twenty situations in which it would be possible to demand payment of the rent from the tenant, with monetary adjustment.
However, if the landlord never exercised his right, remaining silent for twenty years, it is possible to imagine the legitimate expectation of the debtor, the tenant, that the landlord will not claim this difference after the termination of the contract. However, if, after twenty years, the landlord demanded the adjustment for seventeen renewals, for example, it is no longer so easy to imagine that the tenant does not believe that the landlord will exercise this prerogative.
This is a situation that will be analyzed on a case-by-case basis, but a large part of the doctrine and jurisprudence understands that the attitude of landlords who start demanding an obligation in contradiction to the behavior previously adopted for years, goes against a violation of the principle of objective good faith, which should guide contractual relations, and deserves application of the institute of supressio, according to which the inertia of one of the parties generates in the other an expectation that the right will not be exercised.
In this sense, we have an important case judged by the Superior Court of Justice⁴, which recognized the application of supressio and surrectio, when it dismissed an appeal by Petrobras Distribuidora, against a ruling by the São Paulo Court of Justice (TJ-SP), which considered it undue to charge a fine for breach of a contract that had been tolerated for years.
The contract in question was a promise to buy and sell minimum monthly quantities of fuel, and was signed by the distributor and a retailer in 1989. However, throughout the entire commercial relationship, the gas station never reached the minimum monthly target, and Petrobras Distribuidora never protested against the breach of contract. It was only when the station wanted to break the contract that the distributor filed a lawsuit to collect the compensatory fine, claiming there had been a breach of clause.
According to the judgment
[…] the long passage of time (almost six years), without the collection of the obligation to purchase minimum monthly quantities of fuel, has, on the one hand, suppressed the legal power of the distributor (promissory seller) to demand the performance and, on the other, created a situation of advantage for the retail station (promissory buyer), whose default cannot imply the incidence of the contracted compensatory penalty clause.
Considering the possible effects resulting from the application of the institutes discussed in this article, it is of the utmost importance that the terms of the contract are negotiated and inserted into the document as fully as possible and exactly in accordance with the parties’ wishes and interests; and, once the document has been signed, that the terms provided for are observed regularly and in a timely manner throughout the performance of the contract.
In this way, if one of the parties fails to comply with a clause, it is of the utmost importance that the other formally expresses its disapproval of that conduct, by sending an extrajudicial notice, for example, or by charging the fine that may have been agreed in the document, applicable to that situation.
The important thing is that the breach of contract is not ignored, because the long repetition of this “forgiveness” can generate the expectation in the other party that that right should not necessarily be fulfilled.
Marcos Martins Advogados is available to deal with issues involving supressio and surrectio and ensure that their application is favorable to the interests of its clients.
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¹ GONÇALVES, Carlos Roberto. Contracts and Unilateral Acts. 14th edition, Saraiva, 2017.
² BRASIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code, Brasília, DF, Jan 2002. Available at: <http://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm>. Accessed on: 12 Dec. 2018.
Article 422. Contractors are obliged to observe the principles of probity and good faith, both in the conclusion of the contract and in its execution.
BRASIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code, Brasília, DF, Jan 2002. Available at: <http://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm>. Accessed on: 12 Dec. 2018.
Article 330. If payment is repeatedly made elsewhere, the creditor shall be presumed to have waived what was provided for in the contract.
⁴ STJ – REsp: 1338432 SP 2012/0167417-3, Rapporteur: Minister Luis Felipe Salomão, Date of Judgment: 24/10/2017, T4 – Fourth Panel, Date of Publication: DJe 29/11/2017.
