Private international law
PRIVATE INTERNATIONAL LAW (BRAZIL) | BRIEF CONSIDERATIONS
WHICH LAW IS APPLIABLE IN A CONTRACT MADE BETWEEN COMPANIES FROM DIFFERENT COUNTRIES?
AND WHEN A PRIVATE INDIVIDUAL SIGNS A EMPLOYMENT AGREEMENT IN THEIR NATIVE COUNTRY, BEING THAT THE PERFORMANCE OF ACTIVITIES WILL BE IN ANOTHER COUNTRY?
The answers regarding which law is applied in a given case can be found in Private International Law (PIL), whether in international agreements or in any other law related subject.
The main legislative source of PIL is Law of Introduction to the Civil Code. It contains the foundations to preventing and solving the conflicts of laws through the so-called “connecting factors”.
The Federal Constitution and the Civil Procedure Code are national sources of the PIL, being that the internationality of Treaties, Protocols and Conventions signed by the countries tackle, in general terms, matters that enclose more than one juridical system. By doing so, the sources of PIL help to analyze which juridical system is applicable to a given case. It is worth mentioning that the doctrine (expert’s opinion) and the jurisprudence (group of decisions or steady tendency of the courts over a certain subject) are also sources of the PIL.
The residence and nationality, as connecting factors of the PIL, determine the law applicable in cases involving questions of private individuals. When dealing with contractual obligations, however, the place of the signing determines the substance and effects of the contract, being that there is a possibility of applying one more legislation to the related questions. This contractual freedom shouldn’t be confused with a choice of court-clause, which encloses exclusively procedural matter.
Lastly, it is up to the lawyer a thorough examination in the preparation of the contact, being that examples above are but a little fraction of the complexity of practical cases.
DISCLAIMER OF OTHER LIABILITIES
WHAT IS IT?
Individuals in bankruptcy may require a disclaimer of other liabilities which is not completely paid in the process of bankruptcy or in the five years previous to its closure.
This institute aims to protect the debtors who are individuals, since it is the intent to enable individuals to have the so-called fresh restart, making a new beginning possible, with the relief of the unpaid debts, verified that they are assumptions (prescribed by statute).
This institute constitutes a pure gift granted to the insolvent, entirely at the expense of the creditor’s capital, only justifiable if the debtor, regardless of whether he adopted a clean behavior throughout his life, is confronted, due to an unexpected and incontrollable stream of bad luck, with a situation of absolute lack of means to satisfy assumed commitments of a pecuniary nature.
This benefit will only be given to those who deserve it due to the assumption of behavior in which the transparency and good-faith stand out, regardless if it is related to specific economical conditions or to the protection of the creditors’ interests.
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