Dearth (carestia), a legal concept intrinsically linked to the theory of unpredictability and the protection of purchasing power, refers to the phenomenon of excessive and generalized price increases that compromise the economic-financial balance of contracts or dignified subsistence. In the Brazilian legal system, the term bridges Civil Law (theory of unpredictability), Consumer Law, and Labor Law, acting as a foundation for the revision of obligations in contexts of inflationary instability or macroeconomic imbalance.
Concept and Foundation
Dearth, from a legal perspective, is not restricted to the economic meaning of "high prices." It manifests as the factual substrate that authorizes judicial intervention in the autonomy of will, under the precept of rebus sic stantibus. Its legal nature is that of a conditioning element for the application of the theory of unpredictability, embodied in excessive onerousness.
In Brazilian Civil Law, dearth finds resonance in articles 317 and 478 of the 2002 Civil Code. While article 317 allows the judge to correct the value of the performance to ensure its real value, article 478 allows for the resolution of the contract when the performance becomes excessively onerous with extreme advantage to the other party, due to extraordinary and unforeseeable events.
Historical Origin and Evolution
Historically, the concern with dearth dates back to Roman Law and the need to mitigate the effects of severe crises on successive performance contracts. In comparative law, the French doctrine of imprévision (Council of State) consolidated the possibility of contractual revision in the face of events that alter the "balance of the contract's economy." In Brazil, the topic gained prominence during the hyperinflationary periods of the 20th century, consolidating itself in the transition to the monetary stability model, where dearth ceased to be the standard inflationary factor to become an extraordinary and sectoral event.
Practical Application and Jurisprudence
The current jurisprudence of the Superior Courts (STF and STJ) requires rigor in proving dearth as a factor of imbalance. The consolidated understanding is that price variation inherent to business risks (ordinary alea) does not authorize contractual revision.
- STJ, Informativo 667: Reiterates that the theory of unpredictability requires the demonstration of a supervening, extraordinary, and unforeseeable event; the simple allegation of increased costs (ordinary dearth) is insufficient.
- Labor Law: Dearth is frequently invoked in collective bargaining disputes for salary readjustment in the face of loss of purchasing power, based on Art. 7, IV, of the Federal Constitution, which imposes the need for a minimum wage capable of meeting the worker's basic vital needs.
Related Principles and Divergences
The principle of the social function of the contract (Art. 421, CC) and objective good faith (Art. 422, CC) operate as guidelines for the application of dearth. There is a doctrinal divergence between the voluntarist school, which favors pacta sunt servanda, and the social school, which defends judicial intervention to preserve the objective basis of the legal transaction in the face of severe economic shocks.
Contemporary Relevance
Currently, the debate on dearth gains specific contours in energy supply contracts, agricultural inputs, and commercial lease agreements. Contemporary jurisprudence, especially after the impacts of the global logistics crisis and post-2020 market fluctuations, requires the claimant to demonstrate the "breakdown of the objective basis" of the business, going beyond mere market price fluctuations.
Legal and Jurisprudential References
- 1988 Federal Constitution: Art. 7, IV (Protection of wage purchasing power).
- Brazilian Civil Code: Articles 317 (Correction of performance value) and 478 to 480 (Resolution due to excessive onerousness).
- Consumer Defense Code: Art. 6, V (Right to modification of disproportionate contractual clauses).
- Jurisprudence: STJ - REsp 1.879.439/SP (Discussion on the theory of unpredictability regarding exchange rate variations and input costs).
- Doctrine: LÔBO, Paulo. Direito Civil: Contratos. São Paulo: Saraiva, 2023.
