Aplicação da cláusula geral da boa-fé objetiva aos contratos de plano de saúde: uma análise dos julgamentos do TJMA

Abstract

This dissertation aims to critically analyze the application of the general clause of objective good faith in health insurance contracts, in light of the case law of the Court of Justice of the State of Maranhão (TJMA). It starts from the observation that objective good faith, as a general clause and structuring principle of Brazilian Contract Law, plays a central role in the construction of equitable solutions and in the rebalancing of obligatory relationships, especially in contexts marked by the vulnerability of consumers and the essentiality of the right to health. The work is part of the theoretical framework of legal post-positivism, understanding Law as an open system that requires judges to implement constitutional principles in the specific case, especially the dignity of the human person, the social function of the contract and the protection of legitimate trust. The methodology adopted is of a quantitative and qualitative nature, with an inductive approach and monographic procedure, supported by a specialized bibliographic review and empirical analysis of six TJMA judgments that deal with health insurance contracts. The time frame was defined based on the validity of Complementary Law No. 255/2022, which reorganized the Court's Civil Chambers, impacting decision-making practices. The decisions were selected using keywords in the Jurisconsult system and analyzed regarding the degree of implementation of the general clause, argumentative coherence, and the use of normative and jurisprudential criteria. The dissertation is structured in five sections. After the introduction, the second section deals with the role of the Judiciary in the Constitutional State, focusing on overcoming the subsumption paradigm. The third section addresses general clauses in the Brazilian legal system, with an emphasis on objective good faith as an instrument of contractual integration and control of abusive behavior. The third section also examines health plan contracts from the perspective of essentiality and fundamental rights. The fourth section analyzes the selected judgments, highlighting how judges from Maranhão apply (or fail to apply) objective good faith in disputes involving health insurance companies and consumers. Finally, the conclusion systematizes the findings and proposes measures to improve the judicial reasoning. The results of the dissertation indicate that, although the general clause of objective good faith is recognized as a relevant hermeneutical vector, its application is still fragmented, lacking uniform criteria and, at times, far from a dense and rationally controllable reasoning. It is noteworthy, however, that in some judgments there was a modest advance in the use of the reference technique and in the articulation between infra-constitutional norms and constitutional principles, demonstrating the transformative potential of general clauses. The dissertation, therefore, contributes to the critical reflection on the role of the Judiciary in the enforcement of fundamental rights through Private Law.