Limitações à autonomia contratual no estado social de direito: aspectos da intervenção estatal nas relações contratuais

Abstract

The object of labor is the freedom of contract, considered as a Constitutional right and its limitation as an instrument of achieving social justice and protection of fundamental rights. The objective is to examine how to increase production in the social state targeted to interfere with private contractual relationships, limiting the freedom of contractual to prevent supremacy of the economic power in particular relations between individuals, the exercise of constitutionally guaranteed rights. There is criticism against this approach in the sense that the social state entered in an area of high complexity and variability of relevant factors to bring a decision, which makes essential use of open clauses. This would make the interpreter beyond the limits of the law knowledge and penetrating the political and economic sphere, with the weakening of legal argument and the rule of law, since the achievement of substantial justice an autonomous position would undermine the legal order. However, production in the aspect of legislative protection of fundamental rights in contractual relations, can not speak of the welfare state is in crisis because state control of economic activity has ensured the legal protection against the powers of economic domination. It is concluded that this regulation is exerted primarily through open clauses, especially the constitutional principles, as adopted by the European Community law, and regulations as well as administratives acts, fitting to the judiciary an important role in the protection of fundamental rights between particulars, without representing a commitment of legal certainty or even a weakening of the rule of law. The new way to read the private law promotes the functionalization of freedom of contractual, and represents a greater proximity between some civil institutions and the cogent nature of public law. The subjective right is not a ilimited power, where only the individual will of its owner, reducing the scope for the exercise of freedom in the contractual sphere.