The Fourth Panel of the Superior Court of Justice (STJ) decided that the existence of non-attachability or non-communicability clauses does not prevent the sale of a donated asset.
Unanimously, the panel held that the best interpretation to be given to the main provision (caput) of Article 1,911 of the Civil Code of 2002 is that the autonomous imposition of the clauses of inalienability, non-attachability, and non-communicability is possible, at the donor’s discretion.
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The appeal analyzed was filed against a judgment of the Court of Justice of Minas Gerais (TJMG) that denied the request of a beneficiary of a property donation who was interested in registering its transfer to a third party.
After the death of the property’s donor, the beneficiary sold the asset but was unable to register the transfer at the registry office, which required the removal of the non-attachability and non-communicability encumbrances that appeared in the donation.
Considering that these clauses could only be canceled by judicial order, on account of the donor’s death, the beneficiary requested the removal of the encumbrances, alleging the nonexistence of an inalienability clause.
The TJMG stated that, according to the rules originally instituted by Article 1,676 of the CC/1916, and maintained in their essence in the new Civil Code (Article 1,911), property-restricting clauses are not extinguished with the death of the donor, with the exception of life usufruct, whose validity is restricted to the lifetime of the donor beneficiary.
In presenting the appeal to the STJ, the appellant alleged that the donated property was only encumbered with non-attachability and non-communicability, such that there would be no legal obstacle to its sale to third parties.
Autonomous clauses
The rapporteur, Justice Marco Buzzi, explained that the interpretation of the main provision (caput) of Article 1,911 of the Civil Code leads to the conclusion that the autonomous imposition of the clauses of inalienability, non-attachability, and non-communicability is possible, at the discretion of the donor or settlor of the asset.
According to Buzzi, in the face of the inalienability encumbrance, non-attachability and non-communicability are automatically presumed. However, according to the Justice, the exclusive insertion of the prohibition on attachment or communication does not generate the presumption of the inalienability burden.
“Starting from a simple reading of the article of law already mentioned above, it can be inferred that the legislator established only one command, namely, that the imposition of inalienability presumes non-attachability and non-communicability. In other words, the civil law did not establish, prima facie, that non-attachability or non-communicability, encumbered autonomously, would entail inalienability,” he said.
According to the rapporteur, “inalienability being of greater scope, it is a natural consequence that it implies the prohibition on attaching and communicating, all of this following the logic of the old maxim that in eo quod plus est semper inest et minus (he who can do more can do less). However, the reverse is not verified. Non-attachability and non-communicability have more limited, specific objects. The former is directed solely at creditors and the latter is imposed on the spouse of the beneficiary (donee or heir).”
The Justice analyzed the case based on scholarly teachings and stated that it is possible “to conclude for the possibility of selling the asset encumbered only with the non-attachability and/or non-communicability clauses without the need for subrogation of the proceeds of the sale.”
Sale of a donated asset
In granting the appeal, Marco Buzzi held that it is not possible to speak of inalienability of the property encumbered exclusively with the non-attachability and non-communicability clauses. Thus, the rapporteur accepted the appellant’s request and declared that the affixing only of the non-communicability and non-attachability clauses on the property does not prevent its sale.
“According to the direction traced by the techniques of legal hermeneutics applied to the interpretation of Article 1,911 of the Civil Code of 2002, it is recognized as perfectly possible to sell the property that is the subject of the present debate, since it is only encumbered with the prohibition on attaching and communicating,” he stated.
Source: STJ
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