Alteração de circunstâncias nos contratos e a pandemia da COVID-19: uma análise doutrinária e jurisprudencial

Abstract

The present study aims to analyze how the Brazilian courts have applied the institutes and theses regarding the change of circumstances (especially those regarding contract revision/ termination by impracticability or frustration) in the context of the COVID-19 pandemic and whether such application has been appropriate from the technical point of view and from the point of view of Law and Economics, the equitable distribution of risks between the parties and the legal certainty. Furthermore, it is sought to understand if the revision and/or contractual resolution by unexpected circumstances in the pandemic scenario has become more frequent. To do so the tests developed by the jurist Melvin Aron Eisenberg and the main revisionist theories were adopted as a theoretical reference. In the light of such theoretical framework, a predominantly quantitative and deductive analysis was made of rulings from the Court of Appeals of the State of Minas Gerais (TJMG) published until November 14, 2022. Data collection was carried out at the TJMG's website, using the jurisprudence search tool. From this relatively small sample of rulings, it was possible to understand to a certain extent how the Brazilian courts have approached the impacts generated by the COVID-19 pandemic on contracts. In this sense, it was concluded that the application of contractual revision and termination remedies for impracticability cases is no longer exceptional, although it remains the exception. Furthermore, it was concluded that the application of institutes related to the change of circumstances was mixed, having been technically adequate in certain cases and mistaken in others.