A Teoria da Imprevisão e o Equilíbrio Econômico-Financeiro do Contrato Administrativo: Leitura a Partir do Garantismo Jurídico

Abstract

The theme discussed in this article is to analyze the theory of the unpredictability as an instrument capable of guaranteeing the right to protection of the contractual economic-financial balance, under the guaranty perspective, given the duty of strict observance of the principles of equity and legal certainty in bilateral relations. In this sense, it is observed that, although the pacts impose the obligatory fulfillment of the obligations assumed – pacta sunt servanda -, the occurrence of supervenient events and extraneous to the will of the contractors cannot submit the parties to sacrifice that leads them to ruin, in this sense the humanism of the contract must be considered. It seeks to identify the connection between the theory of garantee and the constitutional prediction of keeping the economic-financial equation of the contract intangible, in order to obtain the implementation of the constitutional principles that support it. In this perspective, the present research is preordained to initially deal with the theory of the unpredictability, from the rebus sic stantibus clause, exposing a brief history of its emergence and, subsequently, to identify its characterization, interconnecting it to the principles of equity and of juridical security, as the fulfillment of constitutional precepts, to which the parties have a duty of vassalage, under the view of the theory of the garantism, in its substantial sense. Finally, the research tries to demonstrate the importance of the harmonization of intersubjective relations in the administrative contract, in consonance with the Constitution, the center which irradiates norms and principles to the legal micro-systems that make up the entire legal system. The methodology used to elaborate the article is analytical, bibliographical and critical.