Contratos incompletos à Luz da análise econômica do direito

Abstract

There is no doubt that contract law is essential for business development and for economic growth, since the purpose of the contract is to record the promises made between parties, to ensure compliance with what has been agreed and to strengthen the confidence of economic agents involved. However, according to Law and Economics, contracts are, in essence, incomplete, that is to say, regardless of the time spent trying to work out "perfect" clauses, the contract will not be able to foresee all possibilities, nor to respond to all the possible impasses that such economic relationship may or may not face during the term of the contract. This is because the economy as well as social relations are in constantly change. Thus, trying to encompass all the dilemmas faced by the parties in a single instrument is almost impossible, or at least, it generates too high a cost, which ultimately impedes the realization (or continuity) of the business. In order to ensure legal certainty for the agents involved, there is a need for external regulation of the contract to fill those gaps and provide fair and efficient responses. The Economic Analysis of Law can be an ally in the interpretive task of these blank spaces, providing an instrumental coming from the economy that aims to conserve the economic efficiency of the contracts.