Abstract:
Cause is a condition for the formation of a contract in the French and Quebec civil codes. Why does it not appear in Brazil’s code? Is this merely a mistake? Is this meant to achieve different results than in codes with “cause”?
A comparative investigation reveals that Brazil’s civil code’s authors took the anti-causalist position, one which is well-known and which has a firm theoretical basis. This means that the results which are sought are the same as those in the causalist civil codes. The anti-causalists insist that licitness is not a condition to the formation of a contract, but a limitation on the type of contract that can be formed. Investigation reveals Brazil’s code to have such a limitation: common motive must not be illicit.
In turn, the notion of commonality is examined. Does the common illicit goal need to be shared as an end sought by both the parties, or is the scheme to be similar to that of “unilateral mistake,” where knowledge is the requirement. An examination of various codal schemes reveals that the latter must be the answer. The article concludes with suggestions for changes to Brazil’s civil code.
Klimas, Tadas, Is the French Concept of Cause in Brazil’s Civil Code? (October 24, 2013). A REVISTA SEQÜÊNCIA – ESTUDOS JURÍDICOS E POLÍTICOS [Universidade Federal de Santa Catarina (Brazil) Law Journal] (Forthcoming).
First posted 2013-10-26 11:02:47
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