THE EXERCISE OF CHOICE: CONTROL AND CONSEQUENCES

Abstract

Forgotten or even neglected by many, the obligation to provide something uncertain is one of the ways in which the Brazilian Civil Code makes it mandatory. The responsibility of giving an uncertain thing is the one in which the purpose is the transmission of a quantity of a certain type and not specified, as is the case of the task assumed by the debtor to deliver to the creditor 100 units of watermelons. Question: what kind of watermelons? Preliminarily, its quality is not defined. The enunciation, uncertain thing points out that the responsibility has an uncertain object, but not absolutely, since it must be recognized by gender and quantity. It is consequently uncertain, but determinable. The deliberation will be consecrated by the calculation, in accordance with article 244 of the Civil Code. When, therefore, the choice takes place, the creditor becomes aware, the uncertainty of the obligation ends, and the norms relating to the obligations of giving a certain thing come into force. The deliberation is the intervention of the distinction of the immutable things of the species, that is, the recognition as to the quality of the thing to be delivered. Caio Mário (apud Orosimbo Nonato), teaches that the indetermination of the obligation will cease with the choice, which is verified and considered consummated, both at the moment when the debtor effectively delivers the thing, and even when he endeavors to practice the act necessary for the provision. We insist, therefore, that the circumstance of oscillations must be provisional, otherwise the obligation lacks object. The debtor cannot be compelled to perform generically. Who is responsible for expressing a preference for quality? As a rule, the holder of the right of choice is the debtor, unless the parties stipulate otherwise. Provided in the contract the prerogative of choice to the creditor, it must be understood that he was granted the right to demand the quality of the object, because if another was the wish of the contracting parties, they would not use such a clause. It is recognized that the technical name given to the choice of quality is called concentration. The concentration is the unilateral act that externalizes the delivery, the payment deposit, the constitution in arrears or other legal act that implies the communication to the creditor. Furthermore, the Brazilian Civil Code, in article 244, designates an artifice for the debtor to behave in a certain way to concentrate the essence of the thing to be delivered, namely: First, at the moment when, nothing specifies in the contract, it will compete the choice of the debtor. According to the debtor, in no way will he expose himself, give the worst thing, nor will he be obliged to provide the best. This criterion must be understood in the sense that the debtor must choose the average. Therefore, the parties must respect the middle ground criterion, which means choosing an intermediate quality. In this context, an uncertain thing can be identified in a small number of contracts through expressions such as "more or less or about", as in contracts for the supply of raw materials to industrie. The obligations to give a certain thing are such that the debtor commits himself to delivering a perfectly determined object to the creditor. The good will be indispensably reputed in its personality, conjectured, the law that no other benefit the creditor has in receiving object different from that agreed. Indeed, if the thing is certain, the thing will be irreplaceable and the obligation will survive until the delivery of the thing to the creditor. Otherwise, damages will result, in which case the original obligation will be converted into another obligation, and the first one will not be able to fulfill it.