A função social do contrato, a quebra eficiente e o terceiro ofensor

Abstract

The paper attempts to show a new perspective on the social function of contracts as a duality involving social stability and cooperation between individuals. As a way to illustrate the point it is made a brief exposition on the theories of efficient breach of contracts and the external protection of credit in the notion of a third offender of contractual relations. It identifies the critics regarding the American theory of efficient breach, emphasizing that every breach of contract implies transaction costs that are hard to measure a priori, therefore invalidating the very premises of the theory. In regard of the idea of the third offender, it is possible to make an individual liable for his interference with contractual relations of third parties. That reveals the concern of the juridical system in preserving contractual relations. The contract is also shown as social infra-structure, as it allows re-allocation of resources, being this feature one of the aspects of social function. In conclusion, it is shown a perspective of contract as having an originary social function as a way to secure individuals expectations and allow cooperation among them. There is also an instrumental social function of contract, by which contracts are to be used as a way to secure social values, specially justice and social loyalty, and thus fostering even more the use of the institute.