The Latin expression inter alios, translated as "among others," is an adverbial phrase frequently used in legal technique, notably in Procedural Law and contractual hermeneutics, serving to indicate that a list of elements, subjects, or grounds is not exhaustive, but merely exemplary.
Concept and Foundation
The phrase inter alios has the nature of an opening clause or non-taxative enumeration. In the Brazilian legal system, its application transcends mere stylistics, reaching the level of normative effectiveness and the interpretation of legal transactions. Its primary function is to preserve the openness of the system, allowing the enumeration of a rule or contractual provision to be interpreted under the aegis of the principle of completeness, avoiding the exclusion of hypotheses not expressly provided for, but which share the same rationale as those listed (ubi eadem ratio, ibi eadem dispositio).
Historical Origin and Evolution
The expression finds its roots in Roman Law, fitting into the tradition of classical interpretatio. The maxim inter alios acta aliis nec nocent nec prosunt establishes that acts performed between certain individuals neither harm nor benefit third parties, outlining the principle of the relativity of contract effects. With the evolution of legal dogmatics, the term inter alios detached itself from the restriction of intersubjective effect to consolidate itself as a legislative technique tool, used to provide flexibility to normative commands in the face of the legislator's inability to foresee the totality of factual configurations in social life.
Legal Provision and Legislative Technique
The national legal system uses the logic underlying inter alios (exemplary clauses) in various statutes:
- Civil Code (Law No. 10.406/2002): Article 421-A, which deals with contractual freedom, is frequently inserted in contexts of exemplary norms. Furthermore, the list of personality rights (arts. 11 et seq.) is understood by doctrine as numerus apertus, applying the logic of inter alios for the protection of new legal interests.
- Code of Civil Procedure (Law No. 13.105/2015): Article 489, § 1, when dealing with the reasoning of judicial decisions, uses the technique of exemplary enumeration (e.g., "a decision is not considered reasoned if..."), where the interpretation must consider other hypotheses not exhaustively listed.
- 1988 Federal Constitution: Article 5, § 2, is the ultimate example of the reception of inter alios in the constitutional system, by establishing that the rights and guarantees expressed in the Constitution do not exclude others derived from the regime and the principles adopted by it.
Practical Application and Jurisprudence
The jurisprudence of the Superior Courts (STF and STJ) has consolidated the understanding that the use of terms of exemplary extension imposes on the magistrate the duty of extensive interpretation. At the STJ, in the context of repetitive appeals, the analysis of contractual clauses in adhesion contracts often involves verifying that the list of duties attached to objective good faith (art. 422, CC) is not exhausted in the legal text, with inter alios being the interpretive mechanism for the inclusion of protection, information, and cooperation duties not explicitly codified.
In the scope of Labor Law, the TST has applied the logic of exemplification to recognize the illegality of employer conduct that, although not literally provided for in the items of art. 482 of the CLT, falls under the concept of "other serious misconduct" (item 'l'), demonstrating the practical utility of open interpretation.
Related Principles and Doctrinal Divergences
The institute is directly correlated with the principle of the normativity of principles and the prohibition of non liquet. Doctrine diverges, however, regarding the limits of this openness: while the classical positivist current advocates for the restrictive interpretation of sanctioning norms, the neo-constitutionalist current argues that the inter alios clause is indispensable for the effectiveness of fundamental rights in a complex society, where exhaustive typification would lead to normative obsolescence.
Contemporary Relevance
In a scenario of technological acceleration and the emergence of new contractual arrangements, the inter alios technique becomes the safety valve of the legal system. It allows the magistrate, when faced with unprecedented cases, to use analogy and general principles of Law to integrate the norm, ensuring that the legal system remains dynamic and capable of protecting legal situations that, by their nature, could not have been anticipated by the legislator at the time of drafting the provision.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 5, § 2.
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- STF. ADI 3510, Rapporteur Min. Ayres Britto, Plenary, judged in 2008 (on the openness of the fundamental rights system).
- STJ. REsp 1.633.277/SP, Third Panel, judged in 2017 (on the interpretation of objective good faith and attached duties).
