Author: By Virginia Pezzolo *

Source: Revista Engenharia - SP - NEWS - 06/08/2009

In the general theory of contracts, respect for the agreement is of absolute clarity and pertinence. Nothing can exempt the parties from the proposed obligation, at least as an initial thesis of this undeniable theoretical foundation of the matter. The legal relationship formed by an agreement of wills has an existential structure, rooted in the pretension of agreement of the parties, which the contractual law must contain '', give validity and ensure legal effectiveness.

The social function of contracts, with the passage of time and the dynamics of social and economic relations, took shape by moving away from the old objectives of an individualistic and proprietary character, which marked dominant institutional concepts in the previous legislation, designed to meet the interests of a company. eminently agricultural and rural population.

Such concepts evolved with urban concentration and the industrial and technological development of Brazilian society, as well as with the striking behavioral and cultural changes of the individual. The State has evolved, albeit almost always in clear disagreement with the speed of structural advances and the demands of new times. This disparity is noticed with increasing frequency in the postponed social function of contracts that, even threateningly, started to compromise the perfect legal business. In many cases, the agreement continues to be worked on by the institutions as only of interest among the signatories. And that is not the reality.

In public contracts, the mismatch between the public respect of the agents of Power for the economic and social interests of the private contractor is increasingly worrying. The Law of Fiscal Responsibility was a significant advance in these relations, generating greater credibility in private agents when in the agreements with the State, but in practice such legal supports come up against the classic and little faced procedural delay.

While the conflict of precatorioses, an acquired right generated by debts not honored by the public authorities, largely affects the ordinary citizen, as linked to wage or indemnity pending issues, it makes headlines and has more vigorous social repercussions, another important side of this issue remains in shadow. And it makes the social function of this powerful instrument very emphatic, although it has little or no reaction to public opinion.

The lack of security in public contracts - services rendered, works carried out, under concession or partnership and other types of legal business between the State and the private sector - drives away capital and causes great damage to the stability of the national economy. The government - in its different representations - has always been and continues to be seen as a privileged partner in legally developed businesses.

Brazil is not isolated in this configuration, which exists in most developing countries. And that is what should also be reflected in the reflection and action of society, in the sense of demanding more structural changes that give dynamism to the demands of all kinds, including those contracted with the public power, on which the object of this article is concentrated.

The State refuses to fulfill commitments legally assumed with third parties, throws into space the consecrated and secular principle of pacta sunt servanda (mandatory force of contacts) and sends the claimant to Justice, protecting the security of contracts and restoring the right in principle threatened by one of the contractors.

So, what happens?

The litigant enters a universe marked by catastrophic legislation, (which is only now beginning to be unraveled with binding summaries and repetitive processes), by an inconceivable procedural slowness in Internet times, by the lack of confidence in the functioning of the courts and loss of efficiency in judicial decisions, among many other deviations. He soon realizes the deception of the pact signed with the State. And of which the Judiciary is part, part of the tripartide system, together with the Executive and Legislative.

It is unnecessary to insist again that legal certainty is one of the greatest attractions of non-speculative capital, the one that contributes to staying, growing the economy, generating jobs and reaching everyone. It has a social function, and as such must be seen by all citizens. Especially those who have decision-making and legislative power to change laws, modernize and dynamize archaic and coronelista structures, which the thinking and active Brazil refuses to continue accepting. But it has done little to change it.

* Virginia Pezzolo is a journalist, lawyer and bachelor in social sciences.