A intervenção estatal nos contratos empresariais: uma análise dos artigos 421 e 421-a do código civil de 2002 sob a luz da liberdade econômica e dos princípios contratuais

Abstract

This study examines the escalating tension between private autonomy and state intervention in the domain of commercial contracts in Brazil, considering the historical and ideological shifts that have redefined contract law. Its primary objective is to verify the legitimacy and boundaries of such intervention, with a particular focus on the changes promoted by the Economic Freedom Act (Law No. 13,874/19) in Articles 421 and 421-A of the Civil Code. For this purpose, the study utilizes a deductive method grounded in bibliographic and documentary research, encompassing legal and economic doctrines, alongside an analysis of pertinent legislation and case law. The research commences with a contextualization of the concept of a juridical act, seeking to facilitate an interpretation of the contractual framework. It then defines the commercial contract as a presumptively equal and symmetrical juridical act, differentiating it from consumer relationships and analyzing its unique features. Additionally, the role of the state and the limitations on its intervention are scrutinized under the light of contractual principles, focusing on the clash between private autonomy and state-led contractual guidance (contractual dirigisme). The paper also observes potential infringements by the state upon free enterprise and economic freedom within the mercantile sphere. State intervention is analyzed from the viewpoint of the Legislative Power, addressing the innovations and inaccuracies of the Economic Freedom Act and the Preliminary Draft of the Civil Code Reform; the Judicial Power, with arbitrary decisions; and the Executive Power, through its sectoral, regulatory, and ad-hoc interventions. The conclusion asserts that while the social function of the contract may justify certain interventions, the undiscriminating application of protective frameworks to commercial contracts infringes upon the presumption of parity stipulated in the Civil Code, creating legal uncertainty and adversely impacting economic freedom, free enterprise, and private autonomy.