A onerosidade excessiva em contratos de engineering

Abstract

The aim of this work is to analyze to what extent changed circumstances that are contractually relevant, so as to characterize the legal figure of excessive onerosity [a situation of material burden for complying with a given obligation on one of the contracting parties] pursuant to the Brazilian Civil Code, bring about effects on the payoffs the contracting parties derive from so-called engineering agreements, understood as agreements for the development of large-scale industrial and infrastructure projects. The work traces back the historical and social context of such agreements and describes their main distinguishing features, especially the complexity and risk elements of their underlying economic transactions. The work also describes such agreements as “socially” codified agreements, subject to the discipline of a legally codified figure called “empreitada” [or contractor agreement]. The work also discusses how court precedents deal with the legal figure of excessive onerosity and describes the deal structures normally used in such agreements for the purposes of risk allocation. Finally, the work discusses the application of Law & Economics models, such as the Theory of Incomplete Contracts, as a tool for evaluating the applicability of rules governing the legal figure of excessive onerosity to engineering agreements and analyzing their respective effects. Key-words: engineering agreements – excessive onerosity– complexity – risk allocation – Law & Economics – Theory of Incomplete Contracts.