WAIVER OF FUNDAMENTAL RIGHTS VIA PROCEDURAL CONTRACT

Abstract

Art. 190 of the new Brazilian Code of Civil Procedure introduced in Brazilian law the innovative institute of unenumerated procedural contracts. This work intends to examine a particular category thereof: the contract through which the agent waives her fundamental procedural rights. I begin with a discussion about procedural contracts in contemporary Brazilian law. Followingly, I mention the role of fundamental rights in Brazilian civil procedure, especially considering the so-called constitutionalization of procedural law. After that I approach the question of waiver of fundamental rights in constitutional scholarship. In conclusion, I try to trace some general lines to find the necessary limits to the waiver of fundamental rights through procedural contracts.

Keywords

• fundamental rights
• procedural contracts
• availability
• “evaluative formalism”
• waiver