The Commodum Repraesentationis: An “Obviously Equitative” Contractual Principle?

Abstract

This article analyses the doctrine of commodum repraesentationis and its adequacy to Brazilian law. This doctrine, which not widely addressed by Brazilian literature, is a tool for sharing the risks of obligational impossibility between debitor and creditor. There is not express statutory recognition of this doctrine in Brazilian civil law, contrary to what is observed in France, Germany, and Portugal, which are countries that have deeply influenced Brazil’s legal tradition. The research is theoretical and comparative, of comprehensive and suggestive kind. The methodology used is qualitative, departing from primary and secondary data. The reasoning process is of inductive-deductive kind, exploring normative and theoretical bases in order to suggest an adequate legal framework for the issue. The research has reached the conclusion that the commodum repraesentationis, de jure condito, since it represents a tool of risk-sharing that aggravates the debitor position, cannot be applied in Brazilian law, given the lack of statutory provision. Nonetheless, de jure condendo, the research concludes that the doctrine has institutional benefits that points to its adoption in case of statutory reform.