O princípio do equilíbrio nos contratos comerciais em Moçambique: in(existência) do dever de renegociar

Abstract

This term paper takes a principle-based approach to contracts, dealing precisely with the principle of contractual equilibrium or equivalence of benefits, as some authors prefer to call it. It aims to analyze whether, in commercial contracts affected by excessive onerousness, the parties have a duty to renegotiate the contract in order to return to a healthy position of balance. The contract presupposes a certain stability, without which it becomes distorted and its binding force can be exhausted or annulled. The monograph starts from the fact that a contract is not a static reality, but a dynamic one, and in this dynamism, which has a greater influence on commercial contracts because of their dependence on the socio-economic conditions in which their effects radiate, which in turn are unstable, it can happen that, at the time of the contract's execution, the circumstances are different from those that influenced the will of the parties to contract and that, objectively, they also imply a worsening of the contractual position of one of the parties. The renegotiation of the contract when there is a change in circumstances that leads to an excessive burden on one of the parties is recommended by the principle of contractual equilibrium and, as such, is a fundamental vector for the interpretation, integration and proceduralization of the contract, and here we risk saying that it is an imposition, aimed not only at guaranteeing the continuity of the contractual relationship, but also at meeting the supreme requirements of the legal system, those of contractual justice. It will be seen that the duty to renegotiate is based on two principles that go hand in hand: the principle of equilibrium, which identifies a situation of injustice and requires the equilibrium to be restored, and the principle of good faith, which requires, first and foremost, the cooperation of the parties in this restoration of equilibrium.