A collectivist approach to contract regulation: a comparison of the legislation of Mexico and Brazil'. (Sintesis)
| Autor | Luis Felipe Gómez Alfaro |
| Páginas | 0-11 |
A collectivist approach to contract regulation: a comparison of the legislation of
Mexico and Brazil
Luis Felipe Gómez Alfaro
I
NTRODUCTION
Mexican and Brazilian contract law were once heavily influenced by classical Roman law,
nineteenth century German legal theory and the French codification (Deffenti, 2011)
(Sánchez-Cordero, 1981). Throughout most of their history, Mexican and Brazilian
legislation shared notions of freedom of contract and a general non-interference in the
parties’ bargain. With the enactment of the Civil Code of 2002, Brazilian contract law
departed from the liberal model of contractual relationships and gravitated towards a
collectivist model that increases intervention in the realm of the parties (Deffenti, 2011,
pp. 85-86). Meanwhile, despite the rooting of socialist ideas in other areas of the law (i.e.
labor and employment), freedom of contract has remained the cornerstone of Mexican
contractual legislation.
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The principles of contractual freedom and contract enforceability, which favors the
individual over the totalitarian state, were designed to regulate the stable European society
of the XIX century (Sánchez-Cordero, 1981, pp. 84-85). However, in the XXI century,
Mexican and Brazilian societies are characterized by greater inequality and the existence
of disparity between contracting parties. Both Nations have modified their legislation to
address this realty; therefore, it is beneficial to understand the differences between the
Mexican and the Brazilian contractual regulations. The comparison of the two regulatory
schemes allows policy makers to determine if society benefits more by following Brazil’s
evolution toward a social model of all contractual regulation or by following Mexico in
maintaining the private law institutions.
As reveled by the enactment of Brazil’s Civil Code of 2002, contract law can be
revamped to break from the liberal model and adopt legislation with a social function that
allows the judiciary to promote the equilibrium between the contracting parties, protect the
weaker entity and strive to maximize society’s wellbeing (Benetti Timm, 2008, p.10). This
note contrasts the new approach to contract regulation adopted by Brazil with Mexico’s
current contract legislation. It first presents an overview of the origins of the liberal model
approach adopted Civil Law countries. Second, it explains the recent “socialization” of
Brazil’s contractual regulation. Third, it presents the contract law framework in Mexico
(through the analysis of the Federal legislation which is representative of most of the
State’s contract legislations). Finally, it highlights the major similarities and difference
between the legislations in both countries.
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Código Civil Federal, [Hereinafter C.C.F.] Article 1832 (1932) (which reads: “In civil contracts each
party is bound in the manner and terms it appears they meant to be bound…”)
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