TERRA DI MEZZO: UMA ANÁLISE DA NATUREZA JURÍDICA DOS CONTRATOS DE FRANQUIA À LUZ DA DOUTRINA ITALIANA DO IL TERZO CONTRATTO

Abstract

The traditional contractual classification system is usually divided into two major categories: regular civil contracts (first contract) and consumer contracts (second contract). Pretentiously, this model assumes that such categories are sufficient to properly guide the legal treatment of all existing contractual relations. The franchising contract, however, breaks with this logic when it demonstrates that it owns characteristics that separate it from the aforementioned binary classification, above all, due to the contractual imbalance present between the parties. If on the one hand the franchisee cannot be subject to the contract of consumption because there are reasons not to be considered a consumer; on the other hand, the economic vulnerability that this subject bears in relation to the franchisor also discredits him for the general rule, in which the autonomy of the will prevails. Notwithstanding this, both the doctrine and the courts strive to artificially fit the franchise contracts into these categories, and the Superior Tribunal de Justiça (STJ) has already ruled that the franchisee is not considered a consumer. An alternative arises: il terzo contratto. Coined by Italian doctrine, the term suggests a third category of contracts, whose peculiarities do not fit the binary model, a condition that is true not only with franchise contracts, but also with other kinds of contracts, such as relational contracts, banking contracts, distribution contracts, among others. Taking this into consideration, it is possible to establish some minimum criteria for the characterization of il terzo contratto: 1) vulnerability; 2) asymmetrical negotiations; and 3) subordination of one of the parties to the other. These criteria fits perfectly for franchising, which is why it is necessary to consider that the true legal nature of the institute lies in the framework to these criteria. Taking this as a parameter, it is possible to establish, finally, that the most appropriate thing for the franchising contract would be a new reform in the Franchising Law (Law No. 13.966/2019) to provide in detail about how the relationship between franchisee and franchisor will be constituted after the signing of the contract, something that currently the diploma does not do.