Da eficácia dos contratos de compra e venda de bens imóveis no direito civil brasileiro

• Ano de defesa: 2024
• Autor(a) principal: Leonardo de Oliveira Thebit
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Federal de Minas Gerais; Brasil; DIREITO - FACULDADE DE DIREITO; Programa de Pós-Graduação em Direito; UFMG
• Palavras-chave em Português: Compra e venda; Transmissão do direito real de propriedade; Eficácia translativa; Acordo de transmissão; História do direito civil brasileiro; Direito civil - História - Brasil; Contratos; Bens imóveis; Transmissão (Direito)
• Link de acesso: http://hdl.handle.net/1843/67334

The present study investigates the legal system of real estate purchase and sale agreements in Brazil, with emphasis on the phenomenon of the transfer of property rights between the contracting parties and its relationship with contract law and the logic of rights in rem. To this end, a legal history study was made regarding the history of Brazilian civil law, thus divided into three parts: 1) The process of codification of Brazilian civil law, when both the formation of the Brazilian property registry system and the theoretical debates regarding the role of the real estate registry in purchase and sale agreements in pre-codification brazilian civil law took place. Such debates had an enormous influence on the purchase and sale system adopted by the Brazilian 1916 Civil Code; 2) The academic consolidation observed around the notion of the registry as a form of "solemn traditio" in the context of the purchase and sale of real estate, which occurred after the publication of the Civil Code of 1916; 3) The 20th century civil law debates focused on the (in)existance of something similar to the german Einigung in brazilian contract law. This part of the study was carried out by analysing primary sources of a legislative and academic nature, aiming to reconstruct the historical path of this study’s main research problem between the end of the 19th century and the middle of the 20th century. This was followed by a legal-dogmatic investigation aimed at understanding the real estate purchase and sale agreements within the scope of the Brazilian 2002 Civil Code in contemporary civil law. To this end, the current legal provisions that make up the Brazilian legal system for the transfer of real property rights through purchase and sale contracts were analysed, as well as scientific works that deal with this subject and related issues in contemporary times. It was concluded that current theoretical approaches are insufficient to provide a coherent explanation for the phenomenon of transferring property rights through real estate contracts. Finally, an interpretation of the purchase and sale agreement as a contract endowed with real and obligatory efficacy was proposed, in which the contracts produces both rights in rem and rights in personam, with the registry being understood as an integrative act of the agreement, which, once performed, allows the contract to produce rights in rem.