General principles of beginnings of Contractual Law to the foreign debt of the countries in development

Abstract

The general principles of Law come with normative force in the contemporary juridical systems, because they find its foundation, its force, mainly, in the Natural Right. For that reason, those principles should be observed in the recruitings, be in the national ambit, be in the international, under feather of unbalancing the juridical relationships. Thus, they are pointed out the beginning of the good-faith, also objectively considered, the one of the contractual freedom, for larger justice in the negotiations, and the one of the social function of the contract, as a fair means of understanding among the men. Also, stands out the beginning of the commutativity of the contracts and of the justness, so that the parts are the same, concerning the due installments. Thence, the beginning of the clause rebus sic stantibus, that, considered immanent in all the contracts, it authorizes its resolution; therefore, independently of blame, since both parts' positions lose their balance, due an unexpected fact, unexpected and extraordinary, with larger damage of one of the contracting parties, the resolution is applied. The contract, in that way, becomes very onerous to one of the parts. Though, in inflationary regime, the inflation is not unexpected, what hinders the application of that theory of the improvidence. Thence, the summary of our proposal:
a. Application, pure and simply, of the theory of the excessive onerousness, lesion foister, independently of the theory of the improvidence or of the clause rebus sic stantibus. The simple contractual unbalance, objectively considered, it causes the need of contractual revision, with the consequent replacement to the statu quo.
b. Impossibility of unilateral alteration, by the creditors, of the interest rates, under feather of abusive and even illicit performance, causing the nullity of this modification accomplished without the mutual consent of the contracting parties.
c. Need to respect, for the debits of the existent contracts, the opinion of the International Court of Justice of The Hague, to whom should be submitted the subject on the foreign debt of the Countries in development, or, in case of need, the opinion of the International Organization of Work (IOW).
d. Concerning the future contracts, need to insert, in them, arbitration clauses, choosing, preferably, the referee and its eventual substitutes, in chronological order, in the contractual clause. That referee should be, preferably, the International Court or other equivalent Organ.
e. Encouragement to the Countries in development due the implantation of projects of conversion of the foreign debt with ecological nature. There must be, thus, a general understanding of the creditors of the Countries in development so that the humanity grows and espiritualizes, in the idea of the construction of a new, fraternal and friendly world, in that the matter is secondary in the projects of refinement of the culture of the people, of social justice and of welfare.