Da alteração das circunstâncias no contrato administrativo: o caso imprevisto

Abstract

The present study revolves around changing circumstances in the administrative contract, especially the unforeseen case. For this purpose, it starts from an approach around the derogatory regime that characterizes the administrative contract, and then analyzes the jusprivatisc institute of the change of circumstances and the very important contributions of foreign doctrine and jurisprudence in delimiting the scope of this figure imported into Administrative Law, culminating, with an attempt to capture the essence of this figure in the field of contractual legal relationships celebrated by the Administration. The State, when it appears as the subject of a contractual relationship, has certain prerogatives, which are inherent to its own condition of supremacy. Therefore, contracts governed by Public Law rules must be analyzed with more caution, since, in this contractual modality, certain institutes widely applied in those pacts concluded between private individuals, and governed by rules of a private nature, cannot be freely used. The guiding principles of typically private contracts, such as the obligation to comply with contracts and autonomy of will, should suffer a certain mitigation, in view of the principles that govern the activities of Public Administration, such as the principle of supremacy public interest over private interest, and also the principle of continuity of public service. The public interest must always prevail over the interest of the individual, serving as the basis to govern relations between the public entity and third parties. Therefore, the extraordinary and unpredictable economic event, given the seriousness of its impact, notably for one of the contracting parties to the detriment of the other, may give rise to the review or revocation of the pact. If it is unpredictable and unbearable, such a burden cannot be tolerated by just one of the contracting parties, and must be divided between both. It is precisely at this opportunity that the unforeseen case applies.