Contrato de consumo como ato de necessidade: uma análise crítica ao dogma da autonomia e da liberdade

Abstract

This article critically examines the insufficiency of the general theory of contracts, still grounded in the foundations of classical contractual theory, to explain and regulate consumer relations in contemporary society. It demonstrates that, in an environment of mass contracting marked by technical, economic, and informational asymmetries, the consumer does not exercise real freedom of choice but instead contracts out of structural necessity, which empties the volitional foundation of the legal transaction. Drawing on contemporary civil-law scholarship and employing a deductive and qualitative approach of a theoretical-dogmatic nature, the study analyzes how autonomy of will and contractual freedom, pillars of the liberal paradigm, no longer reflect the material reality of market practices, in which the consumer does not negotiate contractual content and is compelled to adhere to pre-established conditions. Based on a post-positivist hermeneutic perspective, it argues that judicial activity should prioritize contractual justice and the effectiveness of human dignity, overcoming liberal voluntarism and redirecting the consumer contract to its material foundation: the protection of the subject in a structurally unequal position and the fulfillment of their needs. The study concludes by emphasizing the indispensability of an interpretive reframing that recognizes structural vulnerability as an inseparable element of consumer relations, thereby ensuring decisions consistent with the constitutional order and with the social dynamics of mass contracting.