Outlining a theory of „preterpublic“ contracts in Brazilian law

- Part I: the question over administrated objects and the theory of legal transactions.

Abstract

This article seeks to outline the theoretical foundations for what we call the theory of preterpublic contracts, aiming to analyze the issue of legal transactions that have as their object the provision of services that, in Brazil, were state monopolies but were ceded for exploitation by the private sector through a peculiar model of privatization, resulting in private contracts but with an implicit context of limits established by administrative acts, resulting in a category of business object little explored in Brazilian civil law doctrine: administered objects. To carry out this initial outline, the study adopts the German concept of Daseinvorsorgung as its theoretical framework, combining it with the peculiarities of the public service concession process to establish the concept of private law for essential public services. Once this concept is outlined, the study develops the impacts of this conception on legal transactions and the difficulties it creates for foreign investors. The methodology employed is deductive inference, establishing as the main premise the possibility of delineating a privatized concept of public service and understanding the implications of this conception in the comprehension of contracts in Brazil, being supported by documentary and doctrinal investigation on the subject.