The Superior Court of Justice (STJ) (Third Panel) granted the special appeal of two siblings who sought to cancel the inalienability clause on a property donated by their parents. In the justices’ view, the conditions may be set aside in light of the social function of property and the absence of just cause for maintaining the restriction on the donees’ rights.
According to the case file, the property was used by the parents but was donated to the children in 2003, with restrictions of inalienability, non-communicability, and non-attachability. After the death of the parents – the father in 2010 and the mother in 2012 –, the children filed suit to cancel the clauses so they could sell the property.
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However, the trial court denied the request, as did the Court of Justice of Paraná, which held that the cancellation of the restrictions would be conditioned upon a demonstration of just cause for it.
Inalienability clause on a property – right of property
The rapporteur of the special appeal, Justice Paulo de Tarso Sanseverino, recalled that the STJ has interpreted article 1,676 of the 1916 Civil Code with reservations and has allowed the cancellation of the inalienability clause in cases where the restriction, instead of safeguarding the descendants’ assets, amounted to harm to their interests.
“The inalienability clause represents a severe restriction on the right of property, since it prevents the owner from exercising one of the powers inherent to ownership: that of freely disposing of the asset. It is natural that, as it forms part of one’s estate, one may dispose of it, perhaps receiving consideration that is more beneficial to one’s interests and, perhaps, better fulfilling the asset’s due social function,” he said.
The justice recalled that, in some cases, inalienability may be reasonable and beneficial to the donee.
“This, however, will not always be so, whether because the immobilization of the asset in the donees’ hands may fail to ensure their subsistence, or because the very social function of the property that is the object of the gratuitous transaction is wholly undermined, taking on an ‘uneconomic’ position, in the words of Clóvis Bevilácqua, with its withdrawal from the market for extended decades, crystallizing it in the estate of someone who no longer wishes to be its owner,” the justice emphasized.
Logical inversion
Sanseverino pointed out that, in the case decided, the creation of the clause occurred under the 2002 Civil Code, in a context in which the donees’ parents enjoyed the use of the asset. For the justice, after the death of the parents, “the owners must return to the fully empowered exercise of rights over the property, no different guidance being drawn from the Civil Code (CC).”
The rapporteur stressed that the current Civil Code, in article 1,848, now requires that the party imposing inalienability, in the case of a will, expressly indicate just cause for the restriction imposed, “bringing about a true inversion of the logic that existed under the aegis of the 1916 CC.”
“If it is true that the will of the donor and the party imposing the inalienability clause deserves respect, likewise, the right of property of the one who gratuitously receives the asset deserves due protection,” he said.
Source: STJ
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