Post by account_disabled on Feb 25, 2024 2:18:03 GMT -5
Between the parties, it must necessarily be synagmatic, that is, each party must be creditor and debtor respectively of each other. Furthermore, the decrease in assets must be subsequent to the signing of the contract and sufficient to generate a risk to the execution of the promised performance, and the mere negative daily fluctuation of the contractor's assets is not enough.
The main example of application of the insecurity exception, within the scope of higher courts, appears in REsp 1.279.188-SP. Let's see:
The core of the controversy consists of investigating B2B Email List the possible illegality practiced by the appellant in relation to the limitation of the supply of raw materials to the defendant, a limitation accompanied by a reduction in its credit and a reduction in payment terms, all after approximately one year of the beginning of the negotiating relationship, which, essentially, remained verbal.
It was clear from the factual framework of the case that the parties signed a contract in mid-1996 and that in August 1997 there was a reduction in the volume of products supplied by the appellant to the defendant, all of this due to operational problems, and there was a verbal supply agreement at higher volume. In effect, this is not a long-term contractual relationship, in which commercial customs are capable of generating a legitimate expectation in one contracting party that the other will behave in a predictable manner.
In truth, when it comes to production problems, there is an absolutely predictable situation for both contractors, so that the reduction in the supply of products, in this situation, does not reveal any illicit conduct on the part of the supplier. The commercial controversy underlying the case is part of the risk of the enterprise, which cannot be transferred from one contractor to another, notably in contracts that are still in the maturation phase, as in this case.
As for the reduction in supply and credit after the defendant's default, no other action was expected from the appellant. One of the contracting parties cannot be required to maintain the conditions agreed verbally when, in fact, the relationship of trust between the parties has changed. It was lawful, therefore, for the contractor to reduce the volume of product supplied and modify the credit and payment conditions, in light of the contractor's past default, in order to protect itself from greater losses.
Mutatis mutandis, such a measure is consistent with the principle of what in private law has been established as an exception of insecurity, currently provided for in art. 477 of the Civil Code (corresponding to article 1,092 of the CC/1916 and, in part, to what was provided in article 198 of the Commercial Code). “The exception of insecurity, provided for in art. 477, can also be opposed to the party whose conduct clearly puts at risk the execution of the contractual program” (Statement no. 438 of the V Jornada de Direito Civil CJF/STJ).
The main example of application of the insecurity exception, within the scope of higher courts, appears in REsp 1.279.188-SP. Let's see:
The core of the controversy consists of investigating B2B Email List the possible illegality practiced by the appellant in relation to the limitation of the supply of raw materials to the defendant, a limitation accompanied by a reduction in its credit and a reduction in payment terms, all after approximately one year of the beginning of the negotiating relationship, which, essentially, remained verbal.
It was clear from the factual framework of the case that the parties signed a contract in mid-1996 and that in August 1997 there was a reduction in the volume of products supplied by the appellant to the defendant, all of this due to operational problems, and there was a verbal supply agreement at higher volume. In effect, this is not a long-term contractual relationship, in which commercial customs are capable of generating a legitimate expectation in one contracting party that the other will behave in a predictable manner.
In truth, when it comes to production problems, there is an absolutely predictable situation for both contractors, so that the reduction in the supply of products, in this situation, does not reveal any illicit conduct on the part of the supplier. The commercial controversy underlying the case is part of the risk of the enterprise, which cannot be transferred from one contractor to another, notably in contracts that are still in the maturation phase, as in this case.
As for the reduction in supply and credit after the defendant's default, no other action was expected from the appellant. One of the contracting parties cannot be required to maintain the conditions agreed verbally when, in fact, the relationship of trust between the parties has changed. It was lawful, therefore, for the contractor to reduce the volume of product supplied and modify the credit and payment conditions, in light of the contractor's past default, in order to protect itself from greater losses.
Mutatis mutandis, such a measure is consistent with the principle of what in private law has been established as an exception of insecurity, currently provided for in art. 477 of the Civil Code (corresponding to article 1,092 of the CC/1916 and, in part, to what was provided in article 198 of the Commercial Code). “The exception of insecurity, provided for in art. 477, can also be opposed to the party whose conduct clearly puts at risk the execution of the contractual program” (Statement no. 438 of the V Jornada de Direito Civil CJF/STJ).