Aula Obrigações de Fazer e Não Fazer.

Summary

This video lesson dives into the intricacies of obligations in civil law, focusing on the concepts of 'obligation to do' and 'obligation to refrain from doing'. The speaker explains the differences between personal and non-personal obligations, with real-life examples like hiring an artist versus contracting a handyman. The lesson also explores the legal implications when these obligations are not met, discussing cases of fault and force majeure. Special attention is given to the 'clause of radius' in commercial leases, clarifying its legitimacy and common use in shopping centers. The video combines theoretical knowledge with practical application, ensuring a comprehensive understanding of obligations.

Takeaways

• 😀 The 'obligation to do' (obrigação de fazer) involves a positive action where the debtor must perform a specific task or provide a service to the creditor.
• 😀 Obligations can be personal (infungible) or non-personal (fungible). A personal obligation requires the specific debtor to fulfill it, while a non-personal obligation can be delegated to a third party.
• 😀 For example, if you hire an artist to create a sculpture, it is a personal (infungible) obligation, whereas hiring someone to clean an air conditioner is non-personal (fungible).
• 😀 According to the Brazilian Civil Code, if a 'doing' obligation becomes impossible due to circumstances beyond the debtor's control, it can be resolved without penalties. However, if the debtor is at fault, they are responsible for damages.
• 😀 'Obligation of not doing' (obrigação de não fazer) is a negative obligation, where the debtor is required to refrain from performing certain actions. This is typically a form of omission rather than action.
• 😀 For instance, if a contract prohibits the construction of a wall above a certain height, it is an obligation of non-doing (obligation not to construct). Similarly, prohibiting business activities in a specific area is also an obligation of non-doing.
• 😀 If the debtor is unable to fulfill a 'not doing' obligation due to reasons beyond their control (such as a government mandate), the obligation is considered terminated without penalties or damages.
• 😀 An example of a common 'obligation of not doing' is a non-compete clause in contracts, like preventing a store from selling the same products within a specific radius. This is often seen in commercial leases, particularly in shopping malls.
• 😀 The clause of radius ('cláusula de raio') is a legal provision often included in commercial leases to restrict the tenant from operating the same type of business within a certain distance from the leased property.
• 😀 The Brazilian Superior Court of Justice (STJ) has ruled that 'cláusula de raio' is a valid and legal contract provision, as it is not considered abusive, provided it serves a legitimate commercial purpose.

Q & A

What is the focus of the lesson discussed in the transcript?

The lesson focuses on the classification of obligations, specifically the obligations of doing (obrigação de fazer) and not doing (obrigação de não fazer) within the context of civil law. It also distinguishes between personal and non-personal obligations.

What is the key difference between an obligation to do (obrigação de fazer) and an obligation to not do (obrigação de não fazer)?

An obligation to do involves a positive act or service that the debtor must perform, while an obligation to not do is a negative obligation, where the debtor is required to refrain from a certain action or behavior.

How does the lesson distinguish between personal and non-personal obligations to do?

Personal obligations are those that can only be performed by a specific individual, such as hiring a famous artist for a personal event. Non-personal obligations, on the other hand, can be fulfilled by a third party, like hiring someone to repair an air conditioner.

What does the term 'personalíssima' (personal obligation) mean in the context of obligations to do?

'Personalíssima' refers to obligations that are so specific that only the person contracted can fulfill them. For example, hiring a specific artist to perform at an event. These obligations cannot be transferred to someone else.

What happens if the debtor fails to perform an obligation due to force majeure or unforeseen circumstances?

If the debtor fails to perform an obligation due to circumstances beyond their control (force majeure or unforeseen events), the obligation is resolved without penalties, and no damages are owed unless the debtor is at fault.

What happens if the debtor fails to perform an obligation to do due to their own fault?

If the debtor fails to perform the obligation due to their own fault, they will be held responsible for damages (perdas e danos) in addition to returning any payment made for the unfulfilled obligation.

Can the obligation to do be fulfilled by someone other than the debtor in certain cases?

Yes, obligations to do can be non-personal (fungível), which means they can be fulfilled by a third party, provided that the contract does not specify that only the debtor can perform the task.

What is a 'cláusula de raio' (radius clause), and where is it commonly found?

A 'cláusula de raio' is a contractual clause that prevents a tenant from opening a business in a certain radius around the leased property. This is commonly found in commercial leases, particularly in shopping centers.

What does the Civil Code say about the impossibility of fulfilling an obligation to do or not do?

According to Article 248 of the Civil Code, if the performance of the obligation becomes impossible without the debtor’s fault, the obligation is resolved. If it is the debtor's fault, they are liable for damages. Similarly, for obligations to not do, the obligation is extinguished if the act becomes impossible due to circumstances beyond the debtor’s control.

In the case of a 'cláusula de raio' in a shopping center lease, what is the legal standpoint of the STJ (Superior Court of Justice)?

The STJ has ruled that a 'cláusula de raio' is legal and not abusive in shopping center leases. It is considered a valid way to protect the commercial interests of the business and ensure the success of the shopping center by limiting competition within a certain distance.