A hipótese do artigo 1.228, §§ 4° e 5° do Código Civil e a delimitação de seu alcance

Abstract

The purpose of this article is to analyze the modality of acquisition of property brought by art. 1,228(4) and art. 1,228(5) of the Civil Code, in order to face the various obstacles that arise in the field of its application. Such an effort is justified by the need to endow the legal hypothesis with a view to greater effectiveness so that it can meet the goals sought since its insertion into the legal order. In addition to the delimitation of its legal nature, the intention is to establish, through the perspective of the social function of property, a re-signification of the institute, as well as to assign objective parameters for the interpretation of the indeterminate concepts used in the legislative drafting. Despite the recognition of the complexity of the challenges surrounding the legal prediction, the conclusion is that it is possible to make progress in overcoming existing uncertainties based on an interpretative effort and the reduction of the margin of discretion at the time of application of the institute.