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  • Ferraresi Cavalcante – Advogados

The regulation of private relations during the COVID-19 pandemic


The COVID-19 pandemic has strongly impacted the world economy and provoked lively debates in the national and international legal scene about the consequences of its advent in terms of contract execution.


The health emergency, after all, constitutes a supervening fact, unforeseen and not caused by the contracting parties, which projects direct and harmful consequences on the onerousness of the services provided in various legal businesses, with the potential to drastically affect the genetically engineered sign. by the contractors.


The serious impact of the health and economic crisis on benefits deferred over time leads to doctrinal inquiries about the need to redistribute contractual risks to avoid the excessive enrichment of one of the parties at the expense of the other obliged to fulfill the contract.


In this stormy scenario, which often leads to the adoption of timely solutions, designed on the fly, without further reflection, the State has been challenged to mitigate the harmful effects of the double crisis - sanitary and economic.


As a result, several parliamentarians have been presenting bills that aim to provisionally regulate the disrupted contractual legal relations reached by the state of public calamity caused by the mass infection of the civilian population.


Of the projects that seek to regulate private relations in the acute period of the pandemic, one of the most comprehensive, authored by Deputy Júnior Bozzella, provides for the temporary suspension of collection, payment, interest, and fines on debts for 90 (ninety) days, due to the corona-virus pandemic that hit Brazil.


Here is the content of the proposition:


THE NATIONAL CONGRESS DECREES:


Art.1 - This Law temporarily suspends the collection, payment, interest, and fines on debts for a period of 90 days, extendable for the same period, counting from the first day on which the first suspected case of the corona-virus in Brazil appeared.

§1 The following payments, collections and fines related to them will be suspended:

I - Credit card;

II - Housing financing;

a) The amounts will be incorporated without interest or fines and diluted in installments of the financing, without risk of loss of the asset.

III - Debt renegotiations with banks or third-party collection companies;

a) The amounts will be incorporated after the period, without interest or fines, and diluted in the amount of existing debt installments.

IV - Personal and business loans;

a) The amounts will be incorporated after the period, without interest or fines, and diluted in the number of existing installments of the loan.

V - Financing installments and vehicle consortia;

a) The amounts will be incorporated after the period, without interest or fines, and diluted in the number of existing installments of the financing or the consortium, without risk of loss of the asset.

VI - Telephone, piped gas and internet accounts of the major operators;

a) Even without payment, services such as piped gas and telephone and internet services, which become essential due to the possible need for social isolation, cannot be suspended.

VII - Rentals of commercial establishments in malls or inside supermarkets, commercial galleries, and rental of commercial points or to micro and small companies and residences and condominium fees.

a) In this period, if the small business owner or the tenant can pay the rent, he must in this period be reduced by half.

VIII - Any debt, be it in the form of slips, payment slips, condominium administrators, or any establishment or segment

commercial.

Art.2 - Consumers will be exempt from payments for the same period of water and electricity services.

a) Even without payment, essential services such as energy and water cannot be suspended.

Art.3 - It is forbidden to deny names due to the suspension of payments of these debts corresponding to the period of three months,

extendable for the same period.

Article 4 - The Consumer Protection bodies are responsible for determining and fines

possible violation of this Law.

Art. 5 - This Law comes into force on the date of its publication.


In justification, the proponent argues that the threat posed by COVID-19, of incalculable proportions and impacts on the lives of Brazilian citizens, would authorize the exceptional suspension of the execution of onerous and syntagmatic contracts.


The deputy argues that, because of the need to protect the livelihood of citizens and the continuity of the activity of small and medium-sized enterprises, debtors in cash should be allowed, by law, to suspend payments.


More than that - defends the parliamentary author of the bill - the legislator should be exempt from paying interest and fines related to obligations freely contracted before the pandemic date, at least during the acute period of the health crisis, estimated at 90 days (extendable) after confirmation of the first case of COVID-19 in Brazil.


Hence the proposition to seek to innovate national contract law (and also consumer law) by drawing up an ostensibly retroactive law, which would suspend the enforceability of commutative contracts listed by it and prevent the payment of ancillary payments on installments whose enforceability has been suspended. , for 90 (ninety) days, since the confirmation of the first case of COVID-19 in Brazil.


Not very different, as regards the desideratum, is the provision in the Bill of Senator Mecias de Jesus, which authorizes the extension of rural debts due to the coronavirus pandemic (Covid-19).


The text of the proposition is worded as follows:


Art. 1 This Law authorizes the extension of rural debts, for a minimum period of one year, due to the state of public calamity decreed by the public health emergency related to the coronavirus (Covid-19).

Art. 2 - The extension of rural credit operations, in the commercialization, costing and investment modalities, with maturity between March 1, 2020, and December 31, 2020, for a minimum period of one year, arising from financing from family farmers and family enterprises, is authorized rural areas, as dealt with by Law 11.326, of July 24, 2006, nationwide, due to the decree of a public calamity situation related to the international coronavirus pandemic (Covid-19), recognized by the federal Legislative Power under the terms of Legislative Decree No. 6, of March 20, 2020.


The challenge of the legislator has been, as can be seen from the reading of the two proposals mentioned above, that of avoiding the ruin of debtors, on the one hand, and, at the same time, preserving the minimum reliability of contractual relations during the crisis, on the other, to ensure the perception of payments due to creditors.


Interestingly, instead of encouraging judges to apply classic civilian institutes such as the theory of unforeseenness, the fortuitous case or force majeure, or to appeal to the express positivization of the theory of the objective basis of the legal business to govern the situations that involve execution contracts during the pandemic, the national legislature takes the proclaimed path of trying to discipline, retroactively, the situation of contracts already signed.


Notwithstanding the noblest humanitarian intentions that animate several of the texts of the legislative proposals that have been conceived, it is necessary to ask whether the intended future regulation, especially by disciplining the effects of past legal business, would undermine or not the constitutional clause protecting the legal act perfect (art. 5, XXXVI, of the CRFB).


This article is intended to answer, briefly, such questioning.


Thus, after recovering the legislative, doctrinal and jurisprudential treatment regarding the issue of normative non-retroactivity, it is examined whether, from the constitutional point of view, the legislator's attempt to discipline the past, pending and future legal effects of contracts already concluded and improved would be legitimate. previously by a new law, as well as inquiring about the existence of other consistent solutions less traumatic to deal with the interpretative challenges regarding the contractual execution in times of health and economic crisis caused by COVID-19.


2. Some historical and comparative notes on the conflict of laws over time


In Brazil, all Constitutions, except for the 1937 Charter, embraced the principle of normative non-retroactivity [1].


There is a clear advantage that the constitutionalization of the matter represents for Brazilian citizens, who live in a country so lavish in the drafting of laws, so many of them covered with undeniable casuist.


This is because, when the law's non-retroactivity is constitutionalized, the first recipient of the prohibition on the emanation of norms with retroactive effects becomes the legislator himself.

The constitutionalization of the postulate of non-retroactivity thus protects the individual from the temptation of the legislator to modify the past.


Around the world, however, there are nations with extensive democratic experience in which non-retroactivity is a positive guarantee only at the infra-constitutional level, as a true general canon.


This is the case of French law, in which art. 2 of the Civil Code establishes that “la loi ne dispose que pour l'avenir; elle n'a point d'effet rétroactif ”, which, in free translation, means that“ the law only has for the future; it has no retroactive effect ”.


In this case, the guarantee is addressed to the judge and may even oppose non-legal regulations and may be invoked against the administrator, but it will not constitute a shield against the legislator's action.


Irretroactivity is, therefore, in regulations that provide for the guarantee of irretroactivity only at the infraconstitutional level, subject to legislative mitigation when the common good exceptionally points to the need for the past application of new normative commands [2].


In France, for example, an order in which normative non-retroactivity is disciplined on a purely infraconstitutional level (Article 2 of the Civil Code), in this sense, the Faillot Law, which, on January 21, 1918, disciplined, retroactive, as would the revision of contracts hit by unforeseen circumstances, to mitigate the impact of the World War on contract execution.


Here is the text of the law, in what matters:

Art. 1 As long as the war lasts and up to three months after the end of hostilities, the following exceptional provisions apply to markets and commercial contracts for the parties or only one of them, which were concluded before August 1, 1914, and that takes care of the delivery of goods or products, whether other successive installments or only deferred.

Art. Regardless of whether the cause of the resolution results from common law or the convention, the markets and contracts affected by that law, in accordance with the previous article, can be resolved at the request of either party, if it is proven that, on account of the state In the event of war, the performance of the obligations of one of the contractors will incur charges or cause a loss, the importance of which will far exceed the forecasts that could reasonably have been made at the time of the agreement.

Among us Brazilians, the way of appreciating the question of the application of law over time has always been disputed by two great theories, namely: the subjective, based on respect for the acquired right, and the objective, defending the immediate application of the law, except legal situations, definitively constituted [3].


A quick reading of the current Constitution of the Republic (Art. 5, XXXVI, despite the retroactivity of the law that aims to violate the perfectly legal act, the res judicata and the acquired right) shows a certain preference of the constituent for the subjectivist theory.


Among the leaders of this doctrine, one must remember the work of Savigny [4], whose lessons claim to apply such a guarantee to the acquisition of rights, before the new laws came into effect, as well as to its consequences.


The basis for this doctrinal position goes back, according to the notable civilist, to a law imposed by Emperor Theodosius II, who, in 440, edited the following precept:

"Leges et constitutiones futuris certum est dare form negotiis, non ad facta praeterita revocari, nisi nominatim et de praeterito tempore ed adhuc pendentibus negotiis cautum sit."


The German jurist clarifies that this passage does not distinguish the past and future consequences of legal acts and business, but only past and future acts when it states: “the new laws apply to all subsequent legal acts, not to past acts, even when its effects have not yet been realized (adhuc pendentibus negotiis) ”[5].


Savigny's aforementioned conclusion still reverberates in our courts, especially regarding the discussion of the scope of today's postulates of the conflict of laws over time and the impossibility of accepting any degree of retroactivity of infraconstitutional law, be it maximum, medium or minimum.


There are, however, important authors who preach some sort of tolerance to the incidence of new rules immediately, on pending and future effects of legal transactions consummated before its effectiveness, especially in the case of the labeled “law of public order”.


As is intuitive, for the defenders of this second current, draft laws like the ones analyzed here would not present, therefore, any major problems, as long as they turned to govern the still open effects of contracts already concluded.


This is the case of José de Oliveira Ascensão, who, based on a systematic interpretation of Brazilian law, claims to be “consummated” the act that has already exhausted its effects, as the law “must respect the acquisition of rights, but not the content of these; however, the content itself becomes untouchable when the effects are consummated (...) retroactivity will therefore only find space to expand, eventually, concerning the effects still open. ” [6].


Such a conclusion, however, does not seem to be the best, nor the one that, in our jurisprudence, receives the endorsement of the Supreme Federal Court, which well examined the issue now dealt with in judging ADI 493, as will be explained below, with greater detailing.


3. The analysis of the constitutionality of Projects that intend to modify the effects of past contracts due to the COVID-19 pandemic


As can be seen at a first glance, the legislative proposals cited at the beginning of this article are characterized by undeniable contractual leadership, aiming to modify the content and past and future effects of various commutative contracts already concluded, for, among other things, defer mandatory terms, avoid payment of interest, exempt debtors from fines, as well as dilute the payment of installments whose execution, given the health and economic crisis triggered by the pandemic of COVID-19.


Despite the praiseworthy intentions to protect ordinary citizens in low-income situations and to assist business businesses that are in crisis due to the retraction of economic activity caused by the pandemic, the Constitution of the Republic does not allow, in the interest of preserving minimum imperatives of legal security, that law ex post facto alter the content or the effects of legal transactions, which are marked by the qualified will of the parties, the so-called negotiating will (Besitzwille).


The legal system, strictly speaking, photographs the negotiating will of the parties at the time of the conclusion of the contracts - and to this convergent will it attributes the creative power of rights and obligations and rights, raising it to the condition of the formal source of the system - and is not legitimate for the legislator to redefine the effects of the perfect (immunized) legal act to impose its political will on any of the parties.


Provisions such as the one intended by the legislator at the present opportunity are only feasible, in material terms, by agreement between the parties, in contractual novation, or, exceptionally, in court, through revision actions based on the theory of unforeseen or excessive cost (in even more special situations, it is even possible to declare an excuse for non-compliance with the obligation, in situations of force majeure or unforeseeable circumstances, able to break the causal link of non-performance and exclude mandatory responsibility).


In Brazil, it is good to remember, contrary to what happens in other compared systems, (like the French, already mentioned), the guarantee of normative non-retroactivity has constitutional status and is expressed in the text of art. 5th, XXXVI, of the CRFB:

"XXXVI - the law will not prejudice the acquired right, the perfect legal act, and the res judicata."


However, as the prohibitive precept of non-retroactivity has constitutional status, not even the legislator can change the effects of past legal acts, once the cycle of formation of the legal relationship is concluded, whose improvement is dictated by the law in force at the time of the conclusion of the agreement. contracts (tempus regit actum).


The specific question of the possibility of modifying or excluding the interest rate previously agreed in an improved contract due to the supervening work of the legislator has already been examined - and vehemently rejected, in an exemplary manner - as to its legal-constitutional legitimacy, by the Supreme Federal Court.


Along these lines, when the judgment on the merits of ADI no. 493 was carried out, in a memorable ruling by Minister Moreira Alves, the three degrees of retroactivity that a given legal rule can present concerning a perfect legal act were made explicit, for the purpose understanding and definition of the scope of protection of the precept of art. 5, XXXVI, of the Federal Constitution.


“There is maximum retroactivity (also called restitutory, because in general, it restores the parties to the status quo ante), when the new law attacks res judicata and the accomplished facts (transaction, payment, prescription). Such is the decree of Alexander III, who, in hatred of usury, ordered creditors to repay the interest received. The famous French law of November 2, 1793 (12th Brumaire of the year II) belongs to the same law, insofar as it annulled and ordered the remainder of the shares already judged, so that natural children can be admitted to their parents' inheritance, since July 14, 1789). The Charter of November 10, 1937, article 95, sole paragraph, provided for the application of maximum retroactivity, as it gave parliament the power to review judicial decisions, without exception of the res judicata, which declared a law unconstitutional.


The retroactivity is average when the new law reaches the pending effects of a legal act verified before it, for example, a law that limits the interest rate and is applied to the overdue and unpaid.


Finally, retroactivity is minimal (also called temperate or mitigated), when the new law reaches the effects of previous acts produced after the date on which it comes into force.


Such is, in Roman law, the law of Justinian (C. 4, 32, de usuris, 216, 2, and 27 pr.), Which corroborating previous legislative provisions, reduced the interest rate accrued after the date of its mandatory.


Another example: Decree-Law No. 22,626, of April 7, 1933, which reduced the interest rate and applied, "from its date to existing contracts, including those filed".


In the present case, what is intended, with the aforementioned bills, is to discipline, ex post facto, retroactive situation, in order to effectively modify the effects of the parties' negotiating will, already perfected according to the law in force at the time of the contract.


Sometimes, the degree of retroactivity of the new law will be the minimum, projected in the exclusion of falling interest - future effects provided for by the act governed by the past law, but which will only be due to the time of the new law.


At other times, the degree of retroactivity will be the medium, reaching, even more boldly, the pending effects of the perfected act under the old law, as is the case with the claim to exclude accrued and unpaid interest still under the law governing the contract.


The excess committed by the legislator in the proposals examined is - it can be seen with undeniable ease - even more serious than that detected in the edge signed at the judgment of ADI 493, since affected is the main obligation itself, especially at the point where the (alleged) new law intends to defer the enforceability of obligations.


Other unacceptable aggressions to the postulate of non-retroactivity occur when, by law, it is intended to remove the incidence of fines freely agreed, as well as when the aim is to introduce the possibility of diluting the provision of material rights in installments, all by unilateral action by the legislator and without even consulting the creditor.


In this context, carrying out legislative measures of this nature would not only violate art. 5, XXXVI, of the CRFB, but would amount to allowing, still, an authentic concrete expropriation of contractual accessories by the Federal Public Power, without previous and just indemnity, contrary to the provisions of art. 5th, XXIV, of the CRFB.


It is certain, however, that, in times of acute crisis such as the one experienced, there are many voices to defend that public order laws are in force immediately and can reach the contracts in progress, contrary to the arguments developed above.


Such thinking, however, is conveniently faced - and correctly dismissed - by Caio Mário da Silva Pereira [7], who obtains that it is not the valid argument for systems in which, as in Brazil, the principle of non-retroactivity is constitutionally extracted:


“It is often said that public order laws are retroactive. There is a distortion of principle in this statement. When the rule of non-retroactivity is a mere legislative policy, without constitutional basis, the legislator, who has the power to vote retroactive laws, finds no ultra-legal limits to his action, and, therefore, is free to establish the retro-operative effect for the norm of public order, because it overrides the individual interest. However, when the principle of non-retroactivity is addressed to the legislator himself, marking the limits of legislative activity, the law that violates acquired rights is undermined by the Constitution, even if inspired by public order. The opposite thesis is supported by French or Italian writers, precisely because, in those legal systems, the principle of non-retroactivity is addressed to the judge and not to the legislator. ”


It is arguable even further, to conclude that Caio Mário's assertion applies not only because the constituent expressed a preference for the subjective theory of acquired law.


Even if Brazil had adopted the objectivist theory of conflict of laws over time, it would not be advisable to admit that past, pending or future effects of previous contracts were mitigated by new laws.


One of the most notable exponents of objective theory in France, Paul Roubier, moreover, rejected the thesis that public policy norms would have an immediate impact on ongoing contracts [8].


Remember, therefore, that respect for legally constituted legal relations is one of the pillars of effectively democratic states, a projection of the very principle of legal certainty, derived from the constitutional clause of the rule of law.


It is particularly tempting for authoritarian regimes to impose new rules because they must immediately affect all ongoing businesses. This allows unpunished persecution of enemies and sectors seen as opponents of authority.


The intended unconditional subjection or subservience of the principle of legal certainty (through the protection of the perfect legal act, res judicata and acquired right) to the vague principle of the prevalence of public interest would be, therefore, if not an invitation to authoritarianism on occasion, to the adoption of a dangerously different path to the establishment of cesarean democracy in our Republic.


Besides, just as an argumentative reinforcement, it is useful to bring out the lessons of Carlos Maximiliano, to add to the chorus that the effects, even if future, of the contracts, are linked to the law in force at the time of its conclusion, especially regarding non-compliance mandatory [9]:


"176 - Mora, started under a past rule, is regulated by it, although it continues under the new one.


The effective postulates when the obligation was established establish the right to complain against non-compliance; as well as the conventional penalty, its length, the power to fix it, etc. ”


Do not think, however, that the rejection of the analyzed proposals suggests that the subjects of private legal relations will be legally unmanned in the midst of the crisis experienced.


In the next topic, it is pointed out that the Brazilian legal system already has adequate classic solutions to deal with the problems posed by the pandemic of COVID-19, without having to fall into the temptation to pass retroactive laws.


4. The analysis of the sufficiency of the solutions already presented by the legal system of private law to face the COVID-19 crisis

Furthermore, in the scenario of legislative innovations now examined, it is worth noting the evident disproportionality of the projects that have been presented on the subject of COVID-19 (given the existence of less burdensome institutes suitable to remedy any leonine effects of the pandemic on contracts), as well as the lack of fidelity to the tradition of Brazilian private law in the improvised solutions now coined by the ordinary legislator.


The Civil Code of 2002, in articles 478 to 480, and the Consumer Protection Code of 1990, in art. 6th, V - all the operators of law know well -, have regulated, for decades, institutes that can mitigate, through the work of the judge, in revisionary contract actions, the draconian character of benefits that have become excessively expensive due to the fact supervening to contracting (as is the case of the coronavirus pandemic).


It is appropriate to transcribe the wording of the precepts of both diplomas for greater argumentative clarity:


Art. 478. In the contracts of continuous or deferred execution, if the performance of one of the parties becomes excessively burdensome, with extreme advantage for the other, due to extraordinary and unpredictable events, the debtor may request the termination of the contract. The effects of the sentence to be decreed will be retroactive to the date of service.

Art. 479. The resolution may be avoided, offering the defendant to equitably modify the conditions of the contract.


Art. 480. If the obligations of the contract fall to only one of the parties, it may request that its performance be reduced, or the way of carrying it out changed, to avoid excessive costs. (Civil Code)

Art. 6 The basic rights of the consumer are:

V - the modification of contractual clauses that establish disproportionate installments or their revision due to supervening facts that make them excessively onerous; (Consumer Protection Code)

The signage is not, therefore, canonized to the point of becoming intangible, but depends, to be reviewed, on the obligations of successive treatment, of the contradictory procedure, to be conducted before an impartial judge who will investigate the special circumstances of the specific case. , unpredictable and indicative of possible unjust enrichment of one of the contractors, as the constitutional guarantee of due legal process dictates, by the way (art. 5, LV, of the CRFB).


Contrary, however, to what is now clumsily attempted in some legislative proposals, these are institutes foreseen in-laws before the contracts concluded and that, therefore, reliably respect the covenants (perfect legal acts) whose obligations have perhaps reached, abnormally and with extraordinary scope, by the coronavirus pandemic.


Thus, every successive obligation of a contract is in force, with an implicit clause of rebus sic stantibus, coeteris paribus, and presupposes, therefore, the maintenance, within an acceptable judgment of reasonability and probability, of the conditions of good faith and predictability of execution business material initially hired.


Therefore, the proposals now examined, despite their benevolent humanitarian intentions and allegedly preservation of companies, openly violate the provisions of art. 5, XXXVI, of the CRFB, as well as breaking with the legality of Brazilian private law by neglecting the application of the theory of unpredictability and excessive burdens, whose roots are projected in the times of the old canon law.


Therefore, it is not possible simply to create, on the fly, without any concern with the preservation of the contractual sign, a measure of the debtor's unilateral moratorium imposed by the Legislative Power, with the complete disregard of the will of one of the contracting parties (the creditor in the mandatory relationship ).


5. Conclusions


The times lived today are extreme, but systems of Western civil law like Brazil have, for centuries, decanted more appropriate and tested solutions than those suggested by the projects examined in this article to deal with unpredictable facts or incalculable consequences that reach obligations deferred over time.


Quarantines, wars, rioting of the civilian population and other episodes of serious impact on successive contractual relations have been dealt with, finally, on several occasions, by the European and Latin American civil law systems, with no reason to revise, unexpectedly, the national culture of contractual review, well established, with firm institutes to yield to dangerous experimentalisms that are not very different from the principle of legal certainty.


Slowly, over centuries of evolution, the experiences with disasters, armed conflicts, and earthquakes gave rise to institutes of enormous value for the solution of such problems, such as, for example, the theory of unpredictability, the breaking of the causal link by force majeure and fortuity.


Therefore, there are already enough legal tools to deal with the need to cut benefits so that they can be reorganized in an equitable way, which normally imposes losses on both sides of the contractual relationship (and not only one, as conceived in the draft laws that have presented).


Thus, despite the health crisis, contractual solutions to the problems posed by the COVID-19 pandemic must be honored in the light of classic institutes compatible with the history of our German-Romanesque legal system and with the precedents of our Supreme Court on the principle of retroactivity.


The Brazilian legal system, which, it is worth remembering, is, as a rule, deferential to the will of the parties (principle of pacta sunt servanda), does not, finally, by express constitutional provision, the ex post facto review intervention of the legislator (principle normative irretroactivity), as intended in the proposals now examined.


It only authorizes the limited judicial review, in the form of the aforementioned articles 478 to 480 of the Civil Code of 2002 and art. 6, V, of the CDC, in an environment marked by contradictory and by the exercise of broad defense by the interested parties, in the event of the unforeseen and excessive burden of obligations reached by supervening, unpredictable or incalculable consequences, capable of making the execution a torment to the debtor, with undue favoring of the counterparty.


In conclusion, therefore, the bills now examined, if approved by the National Congress, will only deepen the crisis of legal security, since, unconstitutionally and without reverence to the goals drawn by the Supreme Court in the interpretation of the protection scope of art. 5, XXXVI, of the Constitution, upon the judgment of ADI 493, will end up producing varied retroactive effects concerning contracts already improved at the time of the law that was in force at the time of its conclusion.


[1] The first Constitution of the Republic enshrined the principle of non-retroactivity of laws, thus inspiring the first Law of Introduction to the Civil Code, enacted with it in 1916: “Art. 3rd. The law will in no way prejudice the acquired right, the perfect legal act, or the res judicata ”. On September 4, 1942, the new version of the Introductory Law altered the transcribed wording, starting to enshrine the following text: “Art. 6th. The law in force will have an immediate and general effect. However, unless otherwise expressly provided, the legal situations definitively constituted and the execution of the perfect legal act will not reach. In 1957, the same article 6 was subject to a new amendment and reached its current version: “Art. 6th. The law in force will have an immediate and general effect, respecting the perfect legal act, the acquired right and the res judicata ”. In Brazil, therefore, in addition to being a constitutionalized theme, normative non-retroactivity, in a redundant way, has always been disciplined also at the infralegal level

[2] SERPA LOPES, Miguel Maria de. Curso de directo civil – vol. I – introdução, parte peral e teoria dos negócios jurídicos. 8 ed. Rio de Janeiro: Freitas Bastos, 1996, p. 194.

[3] MAXIMILIANO, Carlos. Direito intertemporal ou teoria da retroatividade das leis. Rio de Janeiro: Freitas Bastos, 1946, p. 9.

[4] SAVIGNY, Friederich Carl von. Sistema do directo romano atual – v. VIII. Ijuí/RS: Unijuí, 2004, p. 309/311.

[5] SAVIGNY, Friederich Carl von. Sistema do directo romano atual – v. VIII. Ijuí/RS: Unijuí, 2004, p. 310.

[6]ASCENSÃO, José de Oliveira. O Directo. Introdução e teoria geral. 2 ed. Rio de Janeiro: Renovar, 2001, p. 598.

[7] PEREIRA, Caio Mário da Silva. Instituições de directo civil – v. I. 14 ed. Rio de Janeiro: Forense, 1993, p.117/118.

[8] ROUBIER, Paul. Le droit transitoire (conflits des lois dans le temps). 2 ed. Paris: Dalloz et Sirey, 1960, p.181 entende que: “(…) Il est vrai que, comme nous le vernos plus tard, les effets des contrats patrimoniaux en cours ne sont pas touchés en principe per les lois nouvelles”.

[9] MAXIMILIANO, Carlos. Direito intertemporal ou teoria da retroatividade das leis. Rio de Janeiro: Freitas Bastos, 1946, p. 205/206.

Rogério Andrade Cavalcanti Araújo

Alexandre Vitorino Silva

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