THE PARADOX IN THE PACTA SUNT SERVANDA AND REBUS SIC STANTIBUS PRINCIPLES IN BUSINESS CONTRACTS

Abstract

For many years, the Codex in countries, more specifically in Brazil, the enforcing principle (pacta sunt servanda or agreements must be kept) of contracts has determined the resolution’s format of the defaulted ones. In the last one hundred years, however, individual rights (personal and corporate) granted much rationality to contract resolution under altered contexts, be it economic or social.  Because of the obligational principle, the law stands to be obeyed.  However, the functional principle, that may bend the law under adverse conditions, creates a conceptual paradox. The compulsory effect of the obligation in the resolution of contracts comes to be the element to impose an apparent contradiction on the law’s logic, before the flexibilization principle rebus sic stantibus (things thus standing) that accommodates interests.    The resolutive fundament, however, can be found by approaching the polarity of both so the principles complement each other.  So the flexibilization principle is not just an exception to the first one, but much more than that. This work, therefore, targets at demonstrate the conceptual paradox between the two principles and, at the same time, the complementary character between these principles: obligational and bending principles.  To do this, we use argumentative dialectics, based on expert literature, enabling to demonstrate that contract resolution, when under adverse condition, requires equilibrium in the objective application of both principles.