While Brazilian law, like Australian law, indorses the duty to act in good faith and honesty with respect to contractual relations, the doctrine of freedom of contract under Brazilian law is subject to constraints.3 The new Brazilian Civil Code 2003, mandates that the freedom of contract shall be based on and constrained by the “social function of the contract”.4 As Grebela explains:

For the purposes of the formation of a contract, Brazilian contract law is at odds with the position taken in Australia. For instance, an offer made to multiple persons, such as those made in advertisements is generally considered to be an invitation to treat under Australian contract law unless the contrary is derived from the nature of the offer.6 Ultimately, goods placed on display with price tags attached are not offers but actually invitations to negotiate offers and do not become an offer to enter into contractual relations until such time as an item is selected and presented for purchase.7

Under the Brazilian Civil Code, the opposite position is true. By virtue of Article 429 of the Civil Code 2003 (Brazil) any offer made to multiple parties will be deemed to be a contract proposal if the offer contains the essential elements of the actual contract.8 In other words, the general rule under Australian law is that an offer made to the public is no more than an invitation to treat unless it clearly intends to form the basis of an offer. Under Brazilian contract law, the offer made to the public at large is a contract proposal/offer unless it is clearly meant to be a mere invitation to treat.

Under Australian contract law, when the time for performance of the parties’ respective obligations is fixed under a contract, the parties may extend that time by agreement, acquiescence or waiver.

&nbsp. In a typical case, the courts tend to encourage the continuation of a contract and will not treat delay as a fundamental breach if it is possible for the parties to comply with the contractual terms despite the delay and default by one of the parties.