A alocação de riscos para as partes à luz da teoria do design contratual

Abstract

The contemporary concept of contract comes from the 1980s: a contract shall be  understood as a social product and shall be interpreted within society’s context. The contract, from  the end of the 20th century, reveals itself as a support for the economic operation. In this sense,  the contract starts to act as a future conduct program and brings, among other characteristics, an  asymmetry of information between the parties and risks and uncertainties about its object. Facing  the contract as an instrument of a financial transaction, some questions show up: which party  should absorb the existing risks? Is it possible to predict all variables? What mechanisms exist to  foresee and strategically distribute risks to the parties? The theory of contractual design is granted  to contract parties as a possibility of strategically anticipating risks and results of a possible legal  dispute. According to this theory, besides the contract being an artifact of economy and circulation  of goods, it is an adequate instrument to anticipate or postpone conflicts between the parties.  Without any claim to covering this topic exhaustively, this work aims to trace lines of the theory of  contract design and its influences on the allocation of risks to parties, bringing to discussion the  economic legal issues that are present in everyday life of every contractual lawyer, analyzing it in  the light of this contemporary contractual theory. Last, but not least, due to the major attention it  deserves, an analytical study of the current legal scenario put by COVID-19 in face of the allocated  risks at the front-end in the contractual instruments and the following gap brought up by this  pandemic to the incomplete contracts.