The Pacta sunt servanda postulate constitutes the fundamental cornerstone of the Law of Obligations and International Law, establishing the binding force of contracts and the imperative nature of fulfilling freely agreed-upon obligations. In the Brazilian legal system, it acts as a guarantee of legal certainty and predictability in civil and commercial relations, ensuring that the contract acts as law between the parties and limiting judicial intervention to legally provided exceptional cases.
1. Definition, Concept, and Legal Nature
The principle Pacta sunt servanda (agreements must be kept) conveys the idea that a contract, once concluded with the observance of all prerequisites and requirements for validity, becomes mandatory for the parties involved. From the perspective of legal dogmatics, this principle is the maximum expression of autonomy of will and contractual freedom.
Its legal nature is that of a general principle of private law, serving as a code of conduct and an interpretive parameter. It confers upon the obligatory bond the characteristic of lex inter partes (law between the parties), granting the creditor the right to demand the fulfillment of the performance and the debtor the legal duty to fulfill it, under penalty of patrimonial sanctions. The mandatory nature is the element that distinguishes a contract from a mere moral or social promise, placing it within the sphere of state coercibility.
2. Historical Origin and Evolution
Historically, the binding force of agreements dates back to Roman Law, although initially, formalism (as in stipulatio) prevailed over mere consensus. The expression was consolidated in the Middle Ages, under the strong influence of Canon Law, which associated the breaking of a promise with the sin of lying, giving an ethical-religious character to keeping one's word.
With the rise of Liberalism in the 19th century and the Napoleonic codification (French Civil Code of 1804), Pacta sunt servanda reached its absolute peak. The contract was seen as an instrument of full individual freedom, where the State should not intervene. In Brazil, the 1916 Civil Code reflected this individualistic view. However, the evolution toward the Social State and the promulgation of the 1988 Federal Constitution brought about the relativization of the principle through the social function of the contract and objective good faith, without, however, annulling its essence as a pillar of economic stability.
3. Legal Provision and Positive Foundation
Although the 2002 Civil Code does not use the Latin expression, the principle is materialized in several provisions that structure the binding force of obligations:
- Federal Constitution: Art. 5, item XXXVI, protects the perfect legal act, the constitutional basis for the immutability of contracts in the face of subsequent laws.
- Civil Code (CC/02):
- Art. 389: Establishes the debtor's liability for non-fulfillment of the obligation.
- Art. 421: Defines that contractual freedom shall be exercised within the limits of the social function.
- Art. 421-A (Included by Law 13.874/2019): Reinforces the presumption of symmetry and minimal State intervention, consolidating Pacta sunt servanda in civil and business contracts.
- Art. 422: Obliges the parties to observe probity and good faith, both in the conclusion and in the execution of the contract.
- Economic Freedom Law (Law No. 13.874/2019): Altered the Brazilian contractual paradigm to reaffirm the binding force and the exceptional nature of judicial review, especially in parity contracts.
4. Practical Application and Jurisprudential Understanding
Contemporary jurisprudence of the Superior Courts (STJ and STF) has reaffirmed Pacta sunt servanda as the rule, especially after the advent of the Economic Freedom Law. The consolidated understanding is that judicial intervention for contractual review or resolution must be an exceptional and subsidiary measure.
In the Superior Court of Justice (STJ), the thesis stands out that, in business contracts, the autonomy of the parties must be respected with greater rigor, given the presumption of parity (REsp 1.846.649/MA). The Court understands that simple onerousness or the failure of the business does not authorize the non-fulfillment of what was agreed, requiring proof of extraordinary and unforeseeable events (Art. 478 of the CC).
Within the scope of the Superior Labor Court (TST), the principle is applied with temperaments, given the worker's hyposufficiency, but gains strength in collective bargaining (Art. 7, XXVI, CF), where "negotiated over legislated" reflects the sovereignty of collective wills, as decided by the STF in General Repercussion Theme 1046.
5. Related Principles and Doctrinal Divergences
Pacta sunt servanda does not operate in a legal vacuum, coexisting in a dialectical relationship with other institutes:
- Rebus sic stantibus (Theory of Unforeseeability): It is the main counterpoint. It maintains that the contract must be fulfilled as long as the factual circumstances of its conclusion remain the same. If there is an extraordinary change that generates excessive onerousness for one party and extreme advantage for the other, review is admitted.
- Objective Good Faith: Acts as an ethical limiter. The contract must be fulfilled, but its execution must respect annexed duties of loyalty and cooperation.
- Doctrinal Divergence: There is a debate between the "classical current" (traditional civilists), which defends the almost absolute primacy of will, and the "constitutionalist current" (Constitutional Civil Law), which subordinates the binding force to the dignity of the human person and contractual justice. Currently, Law 13.874/2019 tipped the balance toward the classical current in business relations, maintaining protective coverage in consumer relations.
6. Contemporary Relevance and Practical Impacts
The current relevance of Pacta sunt servanda is manifested in the search for the reduction of the "Brazil Cost." The security that the State will not alter contractual clauses without robust foundation attracts investments and stabilizes the credit market. In the post-pandemic scenario, the principle was severely tested; however, the Brazilian Judiciary, for the most part, maintained the force of contracts, avoiding a domino effect of generalized default under the pretext of force majeure, requiring the clear demonstration of the causal link between the event and the impossibility of fulfillment.
In short, the institute remains the backbone of the circulation of wealth, ensuring that the word given and the signed document have full legal efficacy, safeguarding economic order and social peace.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Civil Code.
- BRAZIL. Law No. 13.874, of September 20, 2019. Establishes the Declaration of Economic Freedom Rights.
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- STJ. REsp 1.846.649/MA. Rapporteur Min. Marco Aurélio Bellizze, Third Panel, judged in 2021 (Reinforcement of minimal intervention).
- STF. General Repercussion Theme 1046. Validity of collective norms that limit labor rights not constitutionally guaranteed.
- STATEMENT 621 of the VIII Civil Law Conference (CJF): "Business contracts must be interpreted based on contractual freedom and autonomy of will."
