Positive Breach of Contract, Obligation as a Process and the Default Paradigm

Abstract

When contemplating the structure of the obligational relationship currently understood as complex, it is in it possible to perceive the existence of a procedural march that ends with the performance. Such performance, however, can no longer be explained only by the notions of credit and debt. That is because this complex obligation is endowed with a myriad of finalistic beams that corresponds to a broader idea of compliance specifically translated by the appropriateness of the conduct of the obligors to a legal standard of good-faith. Thus, as with occurs with the notions of credit and debt, the traditional institutes of absolute default and
delinquency can no longer exhaust the comprehension of the phenomenon of default in the present conception of the obligational relationship. Therefore, once these premises are established, this essay will draw from the studies of Herman Staub and its contemporary critics to (re)propose a case-by-case alternative; a third means to the default genus: the positive breach of contract, which is incomparably capable to better conceptually decipher non-compliance with the lateral duties arising from objective
good-faith. Moreover, since essential, it is still the objective of this article to compare this conception with the enlargement of the structure of arrears as in the 2002’s Civil Code in order to conclude for the necessary absorption of this institute of German tradition by Brazilian law owing to its linear aligning with a manifestation of default that the aprioristic types already prescribed in the code are simply incapable of regulating.