Cláusula de washout nos contratos de compra e venda de safra futura

Abstract

Agribusiness is a fundamental pillar for the economic and social development of the country, emerging as one of the main players in the production and export of agricultural commodities on the international stage. Within this development context, contracts play a crucial role in the coordination and efficient management of the sector, serving as essential tools for mitigating risks and reducing market failures. This work aims to analyze the legal nature of the washout clause, commonly used in contracts for the purchase and sale of future crop harvests, and to identify disturbances in its applicability, seeking practical solutions to the challenges encountered. A detailed investigation of the clause was conducted, beginning with its context of origin in English-speaking countries, aiming to understand its function in that specific scenario. With this understanding, the study progressed to assess the influence and application of the clause in the Brazilian legal framework, focusing on its legality and legal nature. The research includes an analysis of judicial decisions, particularly from the Superior Court of Justice and the State Courts of Justice in Mato Grosso, São Paulo, and Paraná, concentrating on appeal cases. The study of the conformity of the washout clause with Brazilian legislation, specifically with the Brazilian Civil Code (Law No. 10,406/2002), demonstrated its functional similarity to the compensatory penalty clause. Based on the findings, the study proposes practical guidelines for the implementation of the clause, ensuring its legal compliance.