As ditas cláusulas exorbitantes nos contratos administrativos: uma revisão da aplicação do instituto à luz da constitucionalização do direito no cenário do estado democrático de direito

Abstract

Public Administration and Administrative Law are evolving in order to concretize, in Brazil, the Social and Democratic State of Law, resulting in a paradigm review. In order to foment the satisfaction of interests characterized as public, the scope of the State is broadened, resulting in a closer approximation between society and public institutions, in a scenario of distinction’s relativization between the public and the private, in which, as a result of the Democratic State of Law, and the constitutionalisation of the Law, can not be treated as opposing realities, a discussion observed in the Administration's contracts. The administration’s contracts, as an instrument for the realization of the public interest, were customarily divided into administrative contracts and administration’s private contracts, and the specification being based on an exorbitant standard (the exorbitant clause) existing in the first of them. Criticism has also been made to the institute of exorbitant clauses, proposing its overcoming and its foundation, the principle of supremacy of the public interest, to the argument of being incompatible with the Democratic State of Right. It is, therefore, necessary to analyze the institute and its application under the paradigm of the existing legal system, by examining whether exorbitant clauses are an adequate standard to support the contractual dichotomy of the State; the strength of its foundation, in this case, the principle of supremacy of the public interest; the scenario of prerogative clauses and their criticisms; the clauses of prerogative and its points of tension in the Democratic State of Law; the consensualization in the Public Administration; and the solution of conflicts when applying prerogatives, reaching an adequate treatment of the matter in the contemporaneity.