Transfer of Contractual Risk and INCOTERMS: Brief Analysis of their Application in Brazil

AuthorFrederico Z. Glitz
PositionProfessor of Contractual Law aCuritiba, Brazil
Pages108-119
JICLT
Journal of International Commercial Law and Technology
Vol. 6, Issue 2 (2011)
108
Transfer of Contractual Risk and INCOTERMS
Brief Analysis of its Application in Brazil
Frederico Eduardo Z. Glitz
Professor of Contractual Law
aCuritiba, Brazil
fglitz@gmail.com
Abstract. The moment at which risks on merchandise ar e transferred is a fundamental
question in sale contracts. In international system, business uses standardized clauses whereby
contracting parties define the time of that transfer. They are called Incoterms and are typical of
international business dealings. Nevertheless, these clauses are admitted into Brazilian law, not
only in relations of a transnational character, but li kewise in internal contracts. Such a
transposition, however, is not always explained, although the jurisprudential application of the
Incoterms is similar to the international tradition. The objective of this limitation is to s how how
Incoterms has b een taken on by current jurisprudence. Understanding it, would help explain its
role in Brazilian Law.
I. Introduction
Although it is not a novelty in Brazilian law, the conc ern on Incoterms seems restricted to scholars of
international trade. Such optio n is explained by the traditional way in which Comparative Law is dealt in Brazil.
There seems to be a lack of curiosity on the innovative role of foreign i nstitutions and on the viability of its
solutions.
The way in which Incoterms have been dealt with well exe mplifies the critici sm of this old way of thinking.
By means of its ap plication, it is possible to perceive the ap propriation of international figures and its adaptation
to the typical needs of internal trade
1
.
Within this line of thinking, the intention of the present study is to identify the way in which Incoterms are
being ap propriated by Brazilian Courts, including when the clause is app lied to internal business contract for
which it was not originally considered.
For this purpose, a research was conducted in four of the most important Brazilian courts (Paraná’s Court of
Justice, Rio Grande do Sul’s Court of Justice and Rio de Janeiro’s Court of Justice and Brazilian Superior Court
of Justice) during the period between 2006 and 2008, even though a few other cases outside of the limits
mentioned are examined. The objective of this study was to show, in different scenarios, the way t hat Incoterms
are applied by current jurisprudence. In this case, the Stat es of Parana, Rio de Janeiro and Rio Grande do Sul
were mentioned as important exporting centers and, therefore, with a great shipping from their ports.
It is to be emphasized, finally, that hypothesis subject to specific regulation of consumption will not be
considered, since they would not fit within the application proposed for Incoterms. The o bservations will later
be taken up again as concluding notes.
1
Judith Martins Costa, Os princípios informadores do contrato de compra e venda internacional na convenção de Viena de 1980, In
CONTRATOS INTERNACIONAIS E DIREITO ECONÔMICO NO MERCOSUL: APÓS O TÉRMINO DO PERÍODO DE TRANSIÇÃO 163, 164
(Paulo Borba Casella, coord., 1996).

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