A cláusula de não indenizar e seus limites de validade

Abstract

The purpose of this work is to study the non-indemnity clause in order to systematically include this principle within the general dogmatic scope of agreements, in light of the current legal system, most notably due to the omission of provisions regarding the matter, with the exception of a few specific hypotheses, with which the lawmaker was concerned. Given the new paradigm assumed regarding civil liability, which is characterized by the constant search for full reimbursement of the victim of a certain damaging event, the non-indemnity clause emerges, since it is a mechanism used by contracting parties to act as a counterweight to the burden of indemnity to which they are subject, in order to allow the relationship to be established and safeguard private initiative. This invokes considerations regarding the room that contractual freedom effectively grants upon the parties so they may discuss such matters, and which negotiation elements must be present therein so that such a pact can be deemed valid by the legal system, especially in light of the parity between of the parties, the balance between their respective provisions, as well as the need to comply with public order and imperative rules. After initially approaching such matters, we inevitably confirm the relevance of the general clauses with regard to such issues, as the validity of the non-indemnity clause presupposes, ultimately, the observance of public order, good moral conduct, objective good faith and social role of contracts. This analysis finally demonstrates the significant actions of the Judiciary Branch, given the validity of this principle shall depend on examination of the relevant case in order to evaluate the contractual circumstances that justified the insertion of the non-indemnity clause among the general clauses and the guiding principles of our legal system