This research named Fundamental elements for an proper theory of consume
contracts is the thesis presented to the PhD Program in Private Law, at Pontifícia
Universidade Católica of Minas Gerais - PUC Minas. It aims at confirming the
impropriety of using the “legal business” to discipline the consumer contracts. Drown
on a bibliographic and jurisprudential review, the research is based on the
observation that the current Brazilian legal business theory, although being
developed after the Federal Constitution, and in the beginning of 21st century, is still
supported by the subject’s freedom of actuation, who, as the titleholder of the
autonomy, is able to decide for celebrating or not the contracts, as well as shape
their content, deriving from this the juridical obligational value. Nevertheless, the
study of consumer society shows that, actually, the logic of freedom cannot be
applied to consumer relations, especially to the consumer, because he does not act
in a market guided by the autonomy power, but by the necessity of showing relation
to the products and services needed for a worthy life. Because of that, both, the legal
business and contracts’ general theory, is considered inappropriate for ruling
consumer contracts. Consequently, the need of a proper theory, capable of
recognizing consumer contracts as a distinct phenomenon of the private contracts in
general, is presented. In addition, legal mechanisms connected to its peculiarities are
shown. An important paradigm, in this sense, is the study of fact contractual
relations, due to their typical social behavior, that offers important reflections about
the consumer’s behavior on situations like the massive traffic of certain services. In
this way, some fundamental elements for creating consumer contracts are
approached, based on the presupposition of the consumer contract as the promoter
of a human and constitutional functionality, which results, at the end, in a definition of
consumer contract, giving it a single capacity of making it different from the lato
sensu contract, which is approached by private law.
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