The Social Function of the Contract (cause and motive)

Abstract

The present article aims to lead to a reflection on the social function of the contract, as reason and determinative motive of the freedom to contract (rectius - contractual freedom) inserted in article 421 of the current Civil Code. The critics has been raised of long date, especially by the Italian jurists, in the controversy around the causal theory and that it was not adopted by Clóvis Bevilacqua in the Civil Code of 1916, that it was limited to take care of the illegality of the object as essential requisite of all legal act in the configuration of its validity. We demonstrate, on the other hand, that the social function of the contract or economic-social function, as reason, that must be illicit and common to both parts, recognized for the Law is not confused with the notion of the social function of the property (numerus clausus), admitting only certain limitations or types, objective considered so that the property reaches its economic-social utility. In this line of thought, in them we lead to the light of the existencial fenomenology of Martin Heidegger, weaveeing considerations on inhabiting, preserving the “quadrature”, in the direction to construct and to think. The social function of the contract, as reason and motive, in the molds where it is being proposed, falls in the emptiness, apt to lead to the arbitrariety, given its relativity, because what is “social”, as function, easily restores legal unreliability, adopting a revisionist theory of contracts, influenced for the vacant and inexact understanding of the legal transaction, in this trend each more present for generalizations and abstractions. All the obligation has a patrimonial content, not admitting acts of contract for vague ends and of mere whim, from there the necessity of the illegality of the object, of its conformity to the Law. Finally, the adoption of the theory of the social, misty and inexact function, as expression of social utility, makes that, in its imprecision, the related legal relevance, either difficult to materialize themselves and to establish themselves. What it leads to the nullity of the contract illegality of its object. What must be searched is the just.