Revisão dos contratos de compra e venda de energia elétrica no ambiente de contratação livre: cláusula take or pay e a aplicação do instituto jurídico do caso fortuito e da força maior durante a pandemia de COVID-19

Abstract

This work aims to analyze the applicability of the legal institutes of Fortuitous Case and Force Majeure to the purchase and sale contracts of energy signed in the Free Contracting Environment during the COVID-19 pandemic. To do this, it establishes various premises for analysis, which include the need to pay attention to the underlying market, its context of celebration, and the contract itself, responsible for allocating risks between the parties. During the pandemic, the Judiciary was demanded by several consumers from the Free Contracting Environment with the objective of applying these institutes, and did so in a predominantly careless way; disregarding the doctrinal elements that characterize them and the fact that they are theories developed in times of normality applied in an abnormal scenario, which could have negative impacts on the business reality and among the parties themselves. For this, the jurisprudence of the São Paulo Court of Justice and the Federal Supreme Court was analyzed; the former is the forum listed in most of the contracts in question and the latter decided, in a similar matter, on the granting or not of linear discounts to consumers in a pandemic scenario. In addition, the doctrine of civil law and electricity law and the few available articles on the theme were analyzed in detail. It was concluded that the application of both institutes is possible, as long as their requirements are objectively verified, without presumption of their occurrence, in order to preserve the established contractual relations and the legal security of the sector.