Duty to mitigate the loss: a mitigação do próprio prejuízo aplicada às astreintes

Abstract

This work aims to analyze the promisor’s behavior in legal proceedings regarding pecuniary fine (astreintes) focused on good-faith in civil procedural, which is foreseen in article 5° of Brazilian Civil Procedure Code. Precisely, it will be examined the possibility of the mitigation principle, common in Private Law, be applied in civil procedural fields in order to restrain omissive conducts by promisors who don’t act in a way intentionally aiming the unreasonable growth of pecuniary fine fixed. The answer for this question calls for the comprehension about some institutes originated from good faith theory, including the Duty to mitigate the loss. Thus, in the first chapter of this article it will be discussed about the good faith in civil procedural as well as the abuse of right theory, addressing their characteristics and functions.Subsequently, it will be analyzed the duty of promisor minimize own loss in the procedural relationship when, as a result of its inertia in exercising the pecuniary fine within a reasonable period of time, the he monetary amount proves to be exorbitant.