O PAPEL DO ADVOGADO NO PROCESSO DE ALOCAÇÃO DE CUSTOS VIA REDAÇÃO CONTRATUAL: ANÁLISE A PARTIR DA TEORIA ECONÔMICA DOS CUSTOS DE TRANSAÇÃO

Abstract

All economic operations generate costs for the agents that participate in them. However, although many of these operations are similar in size and nature, and many of these agents are in almost identical market positions, it is a fact that, in countless situations, they make different decisions, sometimes opting for a centralized and hierarchical management of their businesses, which is made possible by the firm, sometimes choosing to organize them according to the market price system. In the twentieth century, economist Ronald Coase realized that the key to understanding the reason for these different decisions lay in the element called transaction costs, which are inherent to all operations. These costs, teaches the School of New Institutional Economics (NEI) that used Coase's ideas, stem from the fact that economic agents are rationally limited, do not have access to information symmetrically between them, as well as face the opportunist behavior practiced one to the detriment of the other. Based on this scenario of risks, the present work used a bibliographical review to focus on a perspective of the mentioned costs that divides them according to the moment in which they appear in the operation. This distinction made it possible to work with the concepts of stricto sensu transaction costs - which arise before the conclusion of the contract - and implementation costs - which arise after the conclusion. With this outline, we began to examine the relationship that these types of costs maintain with each other through contractual writing, whose design transforms the relationship into a dynamic similar to the movement of a seesaw. If the wording is more detailed, transaction costs increase and implementation costs are reduced. However, if the wording has a lower degree of detail, that is, it is more vague, the opposite movement of costs occurs. Therefore, the design of contractual writing is an operation cost management tool. From this first conclusion, the work began to analyze the legal nature of the activity of drafting contracts, which resulted in the finding that its exercise is exclusive to the class of lawyers. Thus, based on these assumptions, the central problem of the present work is to understand what is the role of the lawyer in the cost allocation process carried out through contractual writing. Investigating this duty allowed us to infer that it consists precisely in providing assistance to the economic agent represented by the lawyer, since he is the one who has legal authorization and technical qualification to draw up the wording of the contract as faithfully as possible to the decisions of his constituent. In the final part of this work, contractual writing tools were presented that allow the lawyer to play his role in the most appropriate way from the point of view built throughout the chapters.