Legality And Applicability Of The Washout Clause In Commodity Contracts

The present work has as its object the washout clause in a contract for the purchase and sale of delivery of a future soybean crop, with quotation in dollars, inquiring about its lawfulness in view of article 421-A, of the Civil Code, and the possibility of judicial review. The present study is justified by the absence of normative and dogmatic delimitation of the institute, requiring the understanding of its function and legal nature, in order to conform it to positive law. The specific objectives cover the description of the dynamics of long-term contracts involving commodities and the consequences of factual changes external to the contract, but related to it, when the variation of the dollar and the respective delivery provision of the rural producer occurs. In this bias, the legal nature of the clause is debated, based on the institutes of indemnity and the penalty clause. The results point to the legality of the washout clause and its translation as its penalty clause. The methodology of this research is bibliographic, through descriptive analysis and deductive method.