A Resolução do Contrato sem Fundamento

This study analyses the effects of wrongful termination of long-term contracts, where the unlawfulness arises from the absence of the counterparty’s non-performance. It is divided in two parts. The first part is centered on the analysis of wrongful termination regarded as a party’s action, autonomous from the performance of the contract, directed at its destruction. Considering that the right to terminate is subject to a requirement of existence of a breach of contract, its absence results in the unlawfulness of the termination and, as a general rule, in its invalidity. The analysis of the few existing legal provisions regarding unlawful termination, applicable to a definite set of contracts, shows us that despite the existence of a relation between the unlawfulness of the termination and its invalidity, there are situations where said termination does bring the contract to an end. Such exceptions are justified by the prevalence of other interests that the law chooses, in casu, to protect at the expense of legal certainty. Based on the above we conclude that there is not a single answer to the question of the effectiveness of wrongful termination. The second part of this dissertation addresses the effects of wrongful termination as part of the contract’s performance by one of the parties, as a conduct indicating that said party will not perform. We argue that the seriousness of the statement – regarded as an action contrary to the natural course of the obligational relationship, i.e., towards its completion – entitles the innocent party to have resort to all legal remedies for breach of contract. Infringement of an ancillary good-faith duty to refrain from actions contrary to the contract’s performance, breach of trust essential to the contract, violation of a primary obligation or creditor’s protection from fear of prospective non-performance shall constitute the necessary grounds for the use of the above mentioned remedies. The relevance of each of these elements – as the basis for the exercise of said remedies – shall depend from case to case and, in particular, from the relevant contractual type. In light of the hypothesis under analysis, where one of the parties indicated that it no longer wishes to be bound by the contract and its long-term nature, the power of the creditor to keep the contract alive is amongst all of the available remedies of particular interest. The right to affirm the contract is limited by the weighing of other legally protected interests such as the parties’ freedom to bring the contract to an end, the parties’ reasonable expectations, as well as the contractual equilibrium agreed at the time the contract was entered into. We hold that the reasoning used to determine the limits of the right to keep the contract alive, dictated by the need to safeguard the above mentioned interests, is in every way similar to the one used to assess whether the creditor can reasonably be expected to continue to be bound to the contract in the context of termination for just cause. It consists in determining whether in light of the relevant circumstances and the good-faith principle the debtor who stated his will to put an end to the contract can reasonably be held to it. In such reasoning one has to balance on the one hand the creditor’s interest in the contract’s performance and on the other the debtor’s effort to perform. This effort is not necessarily measurable in mere economical terms. The assessment should take into account not only the increase of the performance’s financial cost, but also the moral effort required for the defaulting debtor to be kept bound by the contract. When appraising this moral effort one should have regard not only to the grounds underlying the wrongful termination, but also to the effects of the termination in the parties’ relationship, as the events triggered by such a conduct may have rendered the contract’s maintenance intolerable.