Numerus clausus dos direitos reais e autonomia nos contratos de disposição / Numerus Clausus of property rights in rem and autonomy in exchange contracts

AUTOR(ES)

Rafael Domingos Faiardo Vanzella

FONTE

IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia

DATA DE PUBLICAÇÃO

29/05/2009

RESUMO

My dissertation focuses on a legal regime generally referred to as \"numerus clausus of property rights\". It does so by examining three main aspects of the theme. First of all it analyses the function of that legal regime, which is the source of its perceived legitimacy nowadays. This function consists in tendering for buyers a welldefined catalogue describing all the possible agreements concerning the goods they intend to buy and that are going to be considered as burdens. In a Private Law system, which fosters the private autonomy and prearranges burdens, the numerus clausus works as a menu of those contracts likely to create burdens. All the other contracts not listed in that menu even if they make reference to certain goods will not be treated as burdens. Thus, the buyer may know that his own interests over these goods will not be affected. Second the dissertation identifies a positive and a negative quality in this function. A possible negative aspect is that the numerus clausus is a heavy limitation to private autonomy, mainly to exchange contracts. In this sense, not only the exchanges involving property interests (rights in rem) but also those affecting credits and other kinds of rights (rights in personam) are submitted to the same legal regime which leads to Private Law generally recognizing two kinds of private autonomy regimes in Contract. While inexchange contracts the autonomy is limited, in executory contracts the autonomy is sensitively wider. A possible positive aspect is that the numerus clausus establishes a very powerful tool for opposing interests to third parties: the exchange contract. By selecting one of the few exchange contracts available in that menu, parties may oppose their interests in future transactions they will not take part in. Exchange contracts are obviously not the only system available for opposing interests in Private Law. The so called good faith system, connected with publicity devices, works also in that way, but using a very different legal strategy. Although the legal doctrine is used to identify the application of the good faith system with a \"realization\" of personal rights, that seems problematic. As a matter of fact, as different legal conceptions, exchange contracts submitted to a numerus clausus regime and good faith system require different techniques and arguments. These different procedures are discussed in the third section of my dissertation. In this section I discuss major cases in Brazilian Law which apply sometimes the numerus clausus systems and sometimes the good faith system. I argue that there is no contradiction between the both fashions of judicial decision, unless one simply uses the incoherent notion of \"realization\".

ASSUNTO(S)

direito das coisas direito de propriedade direitos das obrigações direitos reais exchange contracts and conveyances negócio jurídico numerus clausus and private autonomy obligations in rem and good faith obrigação propter rem opposable interests to buyers property and rights in rem boa-fé

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