STJ advances in delimiting the doctrine of substantial compliance (part I)

nila44

I begin my participation in the Current Civil Law column, produced by members and guests of the Contemporary Civil Law Research Network and coordinated by the ministers of the Superior Court of Justice Luis Felipe Salomão, Antônio Carlos Ferreira and Humberto Martins and by professors Ignácio Maria Poveda Velasco, Otavio Luiz Rodrigues Junior, José Antônio Peres Gediel, Rodrigo Xavier Leonardo and Rafael Peteffi da Silva, thanking the honorable invitation to be able to contribute to this privileged space, the stage for relevant and current discussions on the most varied dogmatic themes of Private Law[ i ] .


In this column, we intend to address the current and relevant topic of substantial compliance, which is increasingly attracting the attention of legal scholars, with some even intending, not without raising well-founded resistance to the doctrine [ ii ], its application within the scope procedural law [ iii ] and criminal law [ iv ].

To this end, we start from the analysis B2B Lead of the decision handed down in REsp 1.581.505/SC, reported by Minister Antonio Carlos Ferreira, judged on 8/18/2016, in which the application of the doctrine of substantial performance in case of default was denied. uncontroversial claim of more than 30% of the value of the contract, highlighting the need to establish the correct foundation of this doctrine in Brazilian law, as well as the criteria for its application, without which there is a risk of suffering the effects of poor reception of legal institutes.

This is a special appeal in which a violation of articles 421 and 422 of the Civil Code and articles 4, III, and 51, IV, both of the Consumer Protection Code, is alleged, arguing that the state court had rejected the application of the doctrine of substantial performance under the allegation that the amount due would exceed 30% of the value of the contract, which, contrario sensu, would lead to the presumption that, in the event of 70% performance, the doctrine would apply, highlighting that the missing difference would be just 0.51%.



In judging the extreme appeal, the rapporteur, in an excellent vote, starts from the analysis of the emergence of the doctrine of substantial performance in English law in the 18th century, to conclude that “the use of the institute of substantial performance cannot be encouraged to the point of reversing the logical-legal order that bases the full and regular fulfillment of the contract as an expected means of extinguishing obligations.