Substantial Performance Theory: from Bona Fide to Its Use Requirements

Abstract

This paper performs an immersion in the field of the obligations to then outline the legal limits and historical perspective of the so-called substantial performance theory. The lack of express legal grounds of the theory in the Brazilian legal system does not remove the rich and ingenious doctrinal construction on the subject, taking as a starting point the work of Clovis Couto e Silva, Obligation as a Process, but also the principle of bona fide. In terms of comparative law, it is not surprising that the theory has had wide development and acceptance in common law countries, where contractual practice and the establishment of precedents are true sources of law. Incursions are also made in the systems of civil law countries, centered on the Roman-Germanic legal tradition. The research also focuses on the application of the theory by the Brazilian courts, starting with the decisions of Ruy Rosado de Aguiar in the 1980s, and detailing the position of the Superior Court of Justice on the application of the theory in different obligatory relationships and sectors of economy. In the end, the article draws conclusions on its object, stressing its importance for the operability of civil relations and the necessary parsimony in its application in the obligatory relations that arise from a contract.