Reviewing the role of the positive breach of contract in the theory of default

• Main Authors: Fabio Queiroz Pereira, Daniel de Pádua Andrade
• Format: Article
• Language: Portuguese
• Published: Universidade Estadual de Londrina 2018-03-01
• Series: Scientia Iuris
• Subjects: Violação Positiva do Contrato; Teoria do Inadimplemento; Direito das obrigações
• Online Access: http://www.uel.br/revistas/uel/index.php/iuris/article/view/30366

Currently, in Brazilian law, the positive breach of contract is applied as an autonomous instrument to protect the obligatory interests indirectly linked to the provision. According to this majority view, the figures of absolute default and delay are restricted to the obligatory interests directly related to the provision. The contemporary re-reading of the law of obligations, however, reveals the inseparability between duties of protection and duties of provision. Based on the conceptual reformulation of default and performance in the Brazilian legal system, the present study proposes to review the role of positive breach of contract in the theory of default. This body of work is an investigation of the legal-theoretical aspect and of the legal-propositional type. This study uses, therefore, a qualitative methodology that, from secondary data and inductive reasoning, seeks to work normative and doctrinal bases for the formulation of new frameworks related to the matter. In this sense, instead of a third kind of default, it is suggested to consider the positive breach of contract as a theoretical reference to update and expand the institutes of absolute default and delay.