Pactos sucessórios: ensaio sobre a perspectiva funcional da autonomia privada na sucessão causa mortis

Abstract

This dissertation critically analyzes the rule of generic prohibition of contract of inheritance provided in Article 426 of the Civil Code. Thus it is necessary to contextualize the historical proscription, whose sources can be traced back to Roman law, and also point out the absence of a uniform treatment of this matter in modern law. The main objective of this study is therefore to identify the reasons for the proscription of the contract of inheritance, describe the foundations and the interests involved, as well as to confront them with other interests that could be served through these legal agreements. Based on the studies of foreign/ international experience, the tendency to extend the permission of the contract of inheritance in those countries, where traditionally the legislation established general prohibition, is explained. The structural analysis and the common regime of nullity to all expressions of the contract of inheritance in Brazilian law are exposed in order to shake the prohibitive rule of those bordering situations expressly or implicitly admitted by the legal system, taking, whenever possible, a critical look on the grounds of prohibition. The subject becomes of practical importance when confronted with conflicts and interests that could in theory be easily resolved and fulfilled by the contract of inheritance, or also in the delimitation between the prohibitive rule and the legal possibility of subordinating the effectiveness of the legal business to the event of death (post-mortem pacts). Based on the functional approach, this study seeks to expose the multiple possibilities of private autonomy in the contract of inheritance, compare the obstacles to its realization, the tendency of contractualization as an expression of the contemporary need for succession planning and the practical potentialities of contract of inheritance. Based on the weighing technique and the constitutional civil methodology, the axiological hierarchy of the interests involved in the prohibitive rule is analyzed, in the qualitative negotiating freedom and in the protection of the legitimate succession, in order to contribute with the critical reflection on the rationality of the proscription.