Contratos de locação de bens imóveis na administração pública brasileira: prazos de vigência e prorrogação

Abstract

The leasing of immovable property by the Public Administration with private individuals is a usual practice and makes it possible to satisfy the interests that are under the state tutelage. The public administrator, however, finds great difficulties in defining the legal regime applicable to the lease agreement to be concluded between the parties, since, in spite of being a typically private adjustment, the presence of the Public Administration attracts to the relationship ex locato the incidence of legal principles and public rules. The present study is based on the joint analysis of the rule contained in article 62, paragraph 1st, item I, and of the discipline foreseen in article 57, both of Law 8.666, dated June 21, 8.666/93, and aims to define the legal regime applicable to leasing contracts, offering a perspective that provides a link between the legal systems in place, in order to ensure safe legal solutions to the issues related to the validity and extension of these adjustments. To do so, and starting from a legislative and doctrinal analusis of the contract, it portrays its conceptual evolution and its basic principles; dissecting the contractual legal-administrative relationship, and determining the boundaries between those of private figuration and the purely administrative ones, studying in which basis the legal discipline affects the duration of administrative contracts. Based on these elements, it defines the legal regime applicable to contracts that have the Public Administration as a lessee and introduces the peculiarities regarding the period of validity and extension of these adjustments, bringing doctrinal discussions and jurisprudence on the subject. Finally, it concludes that rental contracts, although not subjected to the time limits established in article 57 of Law no. 8,666, of 1993, may not be concluded for an indefinite period, extending the same reasoning to its possible extensions, which can not be automatic or indeterminate. Lastly, it maintains the need for a maximum time limit for the validity of these adjustments, so that they do not become perpetual and contrary to their own essence, and to the public principles guiding all contracts signed by the Public Administration