O CONTRASTE DA TUTELA JURISDICIONAL MOTIVADA E A LIBERDADE DO CONTRATO PARITÁRIO: ELEMENTOS PARA A DECISÃO JUDICIAL NA PROTEÇÃO DO RISCO ESTRATÉGICO DA TOMADA DE DECISÃO MERCANTIL

Abstract

The business contract is an instrument that represents the exercise of autonomy, free initiative, and the will of the parties in forming partnerships and business groups. From the risks assumed due to the benefits sought by economic agents, crises arise as a result of decisions made. Risk is present in all acts and social relations and can be reduced through the diligent conduct of the economic agent. Even the omission of the agent is a form of decision subject to positive or negative consequences. External elements of guaranteeing trust and objective good faith are imposed on every relationship. Due to the presumption of material equality between the parties, the external elements of the commercial relationship are poorly protected. Notwithstanding the apparent consensus between the parties, the asymmetry of knowledge and the complexity of interests at stake constitute driving forces of the mentioned egalitarian illusion, resulting in significant consequences in terms of vulnerability and inequality. Some contract protection institutes provide the parties with a certain degree of reliability and presumption of good faith through minimal criteria of mandatory observance, promoting better negotiation flow, transaction cost reduction, and security in commercial legal relations. The study develops through deductive methods, drawing premises and conclusions from the state of the art to contextualize situations based on case analysis, relying on documentary and bibliographic research. It is concluded that, despite the freedom guaranteed to entrepreneurs to take risks, safeguard their own interests, and seek profit in all decisions, the parties must adopt a consistent stance of good faith and protection of the trust placed. The autonomy of will can only be mitigated by state intervention when there is a clear violation of these principles, through broad, exhaustive, rational, and consistent motivation. This judicial intervention is limited by the indeterminate legal concepts of legislation, such as exceptional contractual revision, avoiding arbitrariness and judicial imposition on the parties' expectations. Furthermore, the motivation for judicial decisions on business contracts should be based on circumstantial arguments, seeking to concretize the principles of free initiative and consider the specific context of the relationship under analysis.