Aplicação das normas do CDC aos contratos interempresariais: a disciplina das cláusulas abusivas

Abstract

The objective of the present study is to demonstrate the need of instructing the substantial inequality existing in contractual relations signed between businessmen, when one of the parties, although still professional, finds itself in a situation of economic dependence, favoring the abuse of the counterpart in the real situation. The core of this work involves the problem regarding abusive clauses in the scope of inter-business contracts. It seeks to demonstrate that, in hypothesis where it is not possible to reprehend them by means of application of the Civil Code or Antitrust Act, it would be possible to match the vulnerable contracting party, subject to an abuse by its contractual partner, to the consumers, for purposes of application of the provisions in the Consumer Defense Code – CDC to the contract in question. To do so, it analyzes the concepts of businessman and consumers – considering the three main doctrinaire schools of thought existing in the country system – and economic dependence. Specially in relation to the definition of consumers, it attempts to demonstrate that, nowadays, the In-depth Finalist Theory seems to be the best theory that meets the need of searching for the more righteous solution in the real case, without, however, trivializing the application of the CDC. At last, an analysis of Brazilian jurisprudence is made on the subject, aiming to delimitate the criteria for the incidence of CDC in inter-business contracts as well as the main cases in which the concept of consumer has prevailed in such contracts for one of the parties.