Protection of specific contractual investments in italian and brazilian law

This thesis addresses the economic phenomenon of specific investments. “Investments” is a polysemic word with a broad meaning. The commonly used economic definition of “investment” is the allocation of capital in the expectation of producing income. However, the generality of this definition does not allow an appropriate understanding of specific contractual investments, nor does it relate to the notions of financial, accounting and international investment. In a contract, specific investments increase the value of the transaction, but they allow the other party to appropriate this surplus. Academic work in economics has presented contractual solutions to overcome this phenomenon. Despite its economic relevance, few legal rules safeguard this modality of investment. In addition, a comparative analysis showed that the legal grounds for its protection are constructed on controversial bases. As an exception compared with other legal systems, Italian and Brazilian law have rules that expressly protect specific contractual investments. These norms assume different structures of specific provisions and the general clauses. Some of these rules represent interpretive challenges, and the juridical relevance of specific investments occurs in different forms. Investments can be an important element to consider upon the unilateral termination of an agreement. In addition, the rules regulating investments can prohibit termination after their implementation. They also can provide remedies in case of violation. Specific investments also have repercussions for competition. They stand as a positive factor capable of justifying certain vertical restraints, or as an element to evaluate an abuse of economic dependence. The comparative study of Brazilian and Italian law can give an adequate solution to the matter and at the same time promote mutual enrichment. While some factors are specific to each of the rules, they can be traced to some elements common to all of them to regulate the end of a commercial relationship. The common elements of investment protection are summarized as follows: 1) the influence of private autonomy to interfere with the recovery of investments; 2) the identification of the protected interests at the end of the relationship; 3) the protected investments; and 4) the elements to configure an abusive act after the implementation of specific investments. Facing this situation, the definition of the appropriate remedy is complex. The protection must also consider the diversity of interests involved with the premature extinction of the contractual relationship. Some of the developments and arguments concerning Italian law were useful for systematization in the Brazilian legal system. In Brazilian law, the center of gravity changes to the rules of Article 473 and their relationship to the general clauses of the direct abuse of right and good faith. A function was sought to assign to this rule, with the possibility of it serving as support for the extension of the contractual relationship.