Controle de cláusulas contratuais privadas à luz da eficácia horizontal dos direitos fundamentais e da humanização do direito civil

Abstract

Examines the control of private contractual arrangements based on horizontal effect of fundamental rights in relations between individuals and the humanization of Civil Law. The goal is basically to demonstrate that the private law underwent a major evolutionary process, and that the major result of this evolution is with neoconstitutionalism, the constitutionalization of relations between individuals and the so-called horizontal effect of fundamental rights (Drittwirkung der Grundrechte). Assuming that fundamental rights have an immediate impact, especially in relationships between individuals, it is our purpose to show that the contractual clauses can be perfectly controlled in relation to infringement of a fundamental precept . By analyzing the contractual nonentities, we prove that the efficiency in the private sphere is not only possible, but necessary, in the Brazilian constitutional order. The maxim "Contract agreement" is emptied when a violation occurs a fundamental right . This paper also examines specific cases in Germany and Brazil.