The Social Function Being Limit of the Contract: Contribution for the Judicial Application of the Art. 421 of the Civil Code

Abstract

This article explores the existence of a legal situation between the parties in a contract and third on the basis of social function. The general clause of Art. 421 of the Civil Code results a series of rights and duties that creates active and passive legal positions between the parties and third parties in which there is a pretension of a safety contractual relationship by third parties and the impossibility of the parties in a contract cause damages to third parties. The violation of the social function results in an illegal fact in which the patrimonial damage should be compensated by the one who dysfunction the contract because of non-compliance with its passive position created by the contractual situation. Documentary research with trial it was established that the conclusions arrived at in this work are being applied in Brazilian courts, highlighting the Superior Court of Justice (STJ).