Doutrinas Essenciais - Obrigações e Contratos. TEPEDINO, Gustavo. FACHIN, Luiz Edson (orgs). São Paulo: RT, 2011., 2011
...Insurance contracts are hardly explored in Brazil, at least in doctrinal terms. That doesn’t m... more ...Insurance contracts are hardly explored in Brazil, at least in doctrinal terms. That doesn’t mean the insurance market is insignificant, as it is growing year after year. Today, the contractual theory underlying the insurance species is highly complex, though blunted by the thought by which it was originally conceived, particularly in the XVIII century. In post-modernity, in the light of the new thought and under emerging paradigms capable of translating other methods of assessment and of Law concretion, the essentiality stands out and, as such, the insurance contract becomes extremely useful to the citizen and to the society as a whole. Therefore, certain types will be essential. The Law, driven by values erected by the society that creates it, has a special attention on the segment, determining objective formulations leading to the social purposes translated by the insurance contract. The contractual formalism has been relativized, subsumed by the higher order of the contract social function. The Consumer Protection Code demanded a new configuration of the insurance activity, as well as of all other economic activities. Microssistema (microsystem) magnetized the national legal system, likewise a generic civil law – affecting the whole system. The insurance contract and the insurer activity have been strongly hit by this new legal command. They, who failed to perceive such a reality, have already suffered its inherent and irreversible consequences. The whole way of doing insurance had to be changed. Those procedures not affected so far are conflicting with the new order made positive, leading to consequences if not already materialized. The Federal Constitution prohibits any retrocession in this respect, as the Constitution itself determines that it is upon the State to promote consumer protection. In order to ensure the necessary efficacy of this desideratum, the FC adopted the maximum principle of respect to human dignity, insurmountable in view of its magnitude. Which principle could superpose this one? No other, for sure. The Civil Code of 2002, conceived on the innovative wake left by the CPC, adopted several principles in total sympathetic harmony with the consumerist law: objective good faith, limitation of contractual will resulting from the contract social function, in addition to the liability for moral damage, the guarantee of legitimate interest in the specific case of the insurance contract, among others. Conservative advocators in terms of contractual thoughts, particularly those attached to the ideals conceived in the XVIII and XIX centuries, including the ones involved with insurance, live in constant perplexity when faced with the new-implemented ideology. Unquestionably, however, there are no possibilities of making concessions, of retroceding. The dialog of sources prevailing over the ancient and long outmoded principle of pacta sunt servanda, in itself, evidences the post-modern contractual conception. The possible conflict of interests in an insurance contract can no longer be solved just on basis of the policy text. The new order determines the dialog of sources: CC/2002, CPC, Statute of the Elderly, among others. In view of such legal scenario there is no alternative other than changing the way of doing insurance in the Nation. The procedures adopted for decades can no longer prevail.
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