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R. EMERJ, Rio de Janeiro, v. 20, n. 79, p. 348 - 376, Maio/Agosto 2017
348
Third-Party Contracts,
Legal Retroactivity,
and Punitive Damages:
From Europe to Latin America
1
Ángel R. Oquendo
George J. and Helen M. England Professor of Law,
University of Connecticut; CAPES Visiting Professor
from Abroad, Federal & State Universities of Rio de
Janeiro; DAAD Visiting Professor, Free Universities of
Berlin; Ph.D. & M.A. (Philosophy), A.B. (Economics
and Philosophy), Harvard University; J.D., Yale Law
School. The author himself has translated the quoted
non-English texts and vouches for the accuracy of the
translation. He would like to thank Claudia Schubert
for her invaluable contribution to the development of
the ideas of this article. An earlier version appeared
as Civil Law Pulsations Along the Latin American
Periphery, 48 Inter-Am. L. Rev. 87-124 (2016).
Abstract
: The civil-law system shows its true face as it travels from
the Continental European core to the Latin American periphery. Many
of the principal institutions have found a home and thrived in the new
and radically different environment. One can best study them there by
contemplating how they have preserved some of their most basic features
despite having transformed themselves into something else.
The notion of the civil-law tradition and that of codification have
themselves undergone this dialectic of transformation and preservation. So
have the traditional approach to contractual interpretation and to third-party
agreements and the common proscriptions on retroactivity and punitive
damages. In Latin America, as well as in Continental Europe, the intent of
the parties typically takes precedence over the text of the contract and an
agreement normally may benefit a third party despite the general restriction
on extra-party effects. Similarly, a relatively strict ban on the retroactive
application of statutes and on the imposition of punitive damages prevails
on both sides of the Atlantic.
1 A EMERJ disponibiliza a versão traduzida deste artigo através do e-mail:
revistadaemerj@tjrj.jus.br