Aula 2.3 - Classificações dos contratos

Summary

In this video, the professor discusses the classification of contracts in Brazilian Civil Law, focusing on the moment of contract perfection. He explains the difference between consensual and real contracts, emphasizing that consensual contracts are perfected by mutual agreement, while real contracts require the delivery of the object to be considered perfected. The professor also clarifies the distinction between contract perfection and fulfillment, using the example of a real estate transaction to illustrate how contracts are perfected through agreement but require registration to transfer ownership, marking the fulfillment of the contract.

Takeaways

• 😀 A contract is perfected with the simple agreement of the parties involved, in the case of consensual contracts.
• 😀 The most common type of contract in Brazilian Civil Law is the consensual contract, which is perfected with mutual consent.
• 😀 Consensual contracts become obligatory with the simple agreement of the parties' wills, such as in contracts like sales, donations, leases, and mandates.
• 😀 A real contract differs from a consensual contract, as it requires the delivery of the item or property to be perfected.
• 😀 Real contracts, such as commodatum, mutuum, and deposit contracts, are only perfected when the actual item is delivered.
• 😀 Before the delivery of the item in a real contract, there is merely a promise to contract, not a perfected contract.
• 😀 A helpful detail for exams: you can impress examiners by noting that before the delivery of the item, there is only a promise of a contract, not a perfected one.
• 😀 The distinction between contract perfection and contract performance is crucial; they are two different concepts in contract law.
• 😀 According to Pontes de Miranda's theory, the perfection of a contract is on the 'validity' plane, while its performance is on the 'efficacy' plane.
• 😀 In the case of a property sale, the contract becomes perfected upon mutual agreement (consensual contract), but the buyer only becomes the owner after the registration, which is part of fulfilling the contract.

Q & A

What is a consensual contract?

A consensual contract is one that becomes effective simply with the agreement of the parties involved. In other words, it is perfected with the mere manifestation of their wills.

What is the rule regarding consensual contracts in Brazilian Civil Law?

In Brazilian Civil Law, consensual contracts are the rule. They are perfected and considered obligatory with the simple agreement of the parties involved.

Can you provide an example of a consensual contract?

Examples of consensual contracts include agreements like buying and selling, donations, leasing, and mandates, which are perfected with just the mutual consent of the parties.

What is a real contract and how does it differ from a consensual contract?

A real contract is one that is perfected only with the actual delivery of the object or item involved. Unlike a consensual contract, a real contract requires more than just an agreement—it needs the delivery of the thing to be considered complete.

What is a practical example of a real contract?

Examples of real contracts include loan agreements, deposits, or comodato contracts, where the contract becomes perfected only when the object is delivered to the other party.

What is the significance of delivery in real contracts?

In real contracts, the delivery of the object or thing involved is crucial. Without this delivery, the contract does not become perfected. A simple agreement between the parties is not enough to create an obligation.

What does Pontes de Miranda's theory say about contract perfection and compliance?

Pontes de Miranda's theory distinguishes between the perfection and the compliance of a contract. Perfection refers to the contract becoming valid or obligatory, while compliance refers to fulfilling the terms of the contract.

How are the concepts of perfection and compliance structured in Pontes de Miranda’s theory?

According to Pontes de Miranda’s theory, contract perfection is on the second level of his 'scada pontiana' model (validity), while compliance is on the third level (efficacy).

What does the distinction between perfection and compliance mean in practical terms?

In practical terms, perfection means that the contract has been agreed upon and is legally binding. Compliance, however, means fulfilling the obligations set out in the contract, such as registering a property in the case of a real estate sale.

Why is the registration of a property important in a sale contract?

In a real estate sale, even though the contract is perfected with the mutual agreement of the parties, the actual transfer of ownership happens only when the property is registered. Without this registration, the buyer is not legally recognized as the property owner.