The term ad libitum, of Latin origin, translates to "at will" or "at one's discretion," constituting a legal concept that denotes the power to exercise a right or perform an act according to the holder's discretion, without the imposition of a final term or the requirement of a binding justification. In Brazilian Law, the institute finds predominant application in Civil Law, Administrative Law, and Labor Law, serving as the foundation for unmotivated contract terminations and the exercise of potestative prerogatives.
Concept and Foundation
The expression ad libitum qualifies obligations or powers in which the agent's will is not bound by a prior determining cause or a mandatory expiration period. Legally, the nature of the institute rests on the autonomy of will, being the corollary of the freedom to contract and to terminate. It differs, therefore, from bound acts, where discretion is suppressed by legal or contractual imposition.
In Civil Law, the clearest manifestation occurs in contractual relationships for an indefinite period. The possibility of unilateral termination (unmotivated notice) is the materialization of ad libitum, allowing the party to disengage from the contract through prior notice, without the need to prove non-compliance by the other party.
Historical Origin and Evolution
The concept dates back to Roman Law, specifically in the analysis of obligations and possession. The idea of something exercised ad libitum was intrinsically linked to the subject's voluntas. In modern law, the evolution of the principle accompanied the transition from classical liberalism to social constitutionalism. While in the 19th century discretion was absolute, the contemporary legal system imposes limits through the principle of objective good faith (Art. 422 of the Civil Code), preventing the exercise of ad libitum from constituting an abuse of rights (Art. 187 of the Civil Code).
Legal Provision and Practical Application
In the national legal system, the application of ad libitum is observed in several provisions:
- Civil Code, Art. 473: Regulates unilateral termination, the notice of which, when permitted, is effected through notification to the other party, being the exercise of an ad libitum potestative right.
- Civil Code, Art. 599: Establishes that, if no term is stipulated for the provision of service, either party may terminate the contract upon prior notice.
- Consolidation of Labor Laws (CLT), Art. 477: Although mitigated by social protection norms, the request for resignation or unmotivated dismissal (with the payment of severance pay) reflects the nature of ad libitum termination, where the will to break the bond is sufficient, regardless of just cause.
Jurisprudential Understanding
The jurisprudence of the Superior Court of Justice (STJ) has consolidated the understanding that the exercise of ad libitum potestative rights is not absolute. In the judgment of appeals involving contractual notices, the STJ reaffirms that, although the law grants the power of termination, it must observe the principle of the social function of the contract. Recent decisions highlight that unmotivated termination, when exercised suddenly and contrary to good faith, may give rise to compensation for losses and damages, even if the right to break the bond is recognized.
In the labor sphere, the Superior Labor Court (TST) maintains the distinction between unmotivated dismissal (employer's potestative exercise) and discriminatory dismissal, the latter being prohibited by the legal system, which demonstrates the application of ad libitum only within the limits of constitutional legality.
Related Principles and Divergences
The doctrinal debate revolves around the tension between ad libitum and the prohibition of abuse of rights. Contractualist currents defend the prevalence of private autonomy, arguing that the restriction on discretion distorts the freedom to contract. In contrast, neo-constitutionalism, based on solidarity, argues that ad libitum discretion must be tempered by the prohibition of contradictory behaviors (venire contra factum proprium).
Contemporary Relevance
In contemporary times, the term gains relevance in the analysis of adhesion contracts and consumer relations. The trend of superior courts is to restrict absolute discretion in successive performance contracts, requiring that the exercise of the right to terminate observe criteria of reasonableness, preventing sudden interruption from generating economic imbalance or unfair damage to the opposing party.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code. Articles 187, 422, 473, and 599.
- BRAZIL. Decree-Law No. 5.452, of May 1, 1943. Approves the Consolidation of Labor Laws (CLT).
- STJ. REsp 1.830.407/SP, Rapporteur Minister Nancy Andrighi, Third Panel, judged in 2020 (on the limits of unilateral termination).
- STF. ADI 1.946/DF (Debates on the compliance of contractual terminations with the Federal Constitution).
- TARTUCE, Flávio. Civil Law: General Theory of Contracts and Specific Contracts. Ed. Forense, 2023.
