Os contratos bilaterais do falido e a validade da cláusula de resolução

Abstract

This discourse, through a detailed doctrine study, aims to examine the validity of the termination clause for bankruptcy, considering that is common to establish in business contracts clause that determines the resolution of the contract in the event of bankruptcy of one of the parts. At first we analyze the outline of the historical development of bankruptcy, and the change of focus of the bankruptcy legislation, favoring the maintenance of business activity. Subsequently, there is a general approach on the institute of bankruptcy, its legal nature and assumptions. About the sentence declaring bankruptcy, we analyze the legal nature, characteristics and requirements, systematic appeals and its effects in relation to the contracts of the bankrupt. Finally, we study the concept of termination clause, from the analysis that emerges from bankruptcy termination clause by itself. The art. 117 of Law 11.101/05 is not a voluntariness standard, considering the diverse and multifaceted interests, and that can not be overcome by the will of the parties. Moreover, analyzing the economic implications, admitting the validity of the clause means releasing the "cost" of a counterparty obligation that will not have to shoulder the payment of any amount of compensation to the estate. This fact, even in a context of solvency, should be avoided. A systematic analysis of the bankruptcy laws shows that the termination clause for bankruptcy should be invalid.