A efetividade de cláusula resolutiva expressa como mecanismo de autotutela contratual: uma alternativa à judicialização da resolução do contrato

Abstract

The express resolution clause provides to one of the contractors the right to resolve the contract out of the court in face of default of contratual obligations by the other contractor, is an important instrument for autotutela, with constitutional backing, as an expression of private autonomy. However, despite the legal system forecast about this clause, the brazilian courts are reluctant to give effectiveness to express resolution clause, demanding judical manifestation for the contractual resolution operates. Starting from an analysis and critique of judicial guidance in such sense, this study demonstrates the under-use of the clause in the brazilian experience and proposes the extension of the application of that instrument, arguing both its advantages as its limitations against the principles of objective good faith and abuse of rights.