A boa-fé processual como norma fundamental: análise da possibilidade da aplicação da teoria duty to mitigate the loss como parâmetro de modulação das astreintes

Abstract

The study of the impacto the objective good-faith in law procedures, as fundamental norm of procedure, is of utmost importance because it falls upon as a parameter of ethics throughout the diploma of civil procedures. In this aspect, the fixing of astreintes, for the realization of specific tutelages, as a coercive measure aims to convince the debtor to fulfill the judicial control under the penalt of patrimonial constriction. If as astreinte has reached excessive value, when its reduction is conceded, it is up to the judge to verify the behavior exercised by the creditor, which must be consistente with the duties of cooperation and loyalty, acting in such a way to mitigates losses caused by non-performance of the debtor.