O testamento vital como possibilidade de livre desenvolvimento da personalidade humana na esfera negocial.

Abstract

The recent transformations that society has undergone ended up bringing new challenges to Law that were not previously projected by legal science, challenging secular structures and institutes. In this sense, concepts such as subjective law and legal relationship start to collide with new situations that emerge in the social environment, which, although they do not have an express normative provision, demand Law for the need for valuation and a suitable solution. And it is from these premises that the present work arises, whose investigation is centered on the following question: can the legal transaction be considered as a means capable of the human person freely developing their personality? This question arises amidst the classic observation of the structure of legal transactions, which presupposes the existence of a subjective right. In view of this, this research proposed to investigate the possibility of there being a right to the free development of the human personality in the business sphere, based on the specific situation of the living will, a legal transaction of an existential nature. In order to analyze the problem-question and, therefore, achieve the objective it proposes, it proposed to use what, initially, was called “new paradigms of Civil Law”, based on the concept of “paradigm” proposed by Thomas Kuhn in his work “The Structure of Scientific Revolutions” and widely used in various fields of scientific knowledge. From a methodological point of view, the deductive approach method was used, in addition to bibliographic and documentary research techniques, with reference to legislation and, in particular, scientific articles reviewed by peers and indexed in databases, in addition to theoretical frameworks considered as essential to the construction of the work, being, in this sense, a qualitative research, due to the subjective analysis of the data undertaken in the investigation. In the end, it could be seen that the living will, in addition to being considered a legal transaction of an existential nature, is also a space capable of externalizing rights relating to personality, leading to reasoning that leads us to believe that legal transactions can function as a means of free development of the human personality, in effect. This perspective, it is worth saying, comes to the fore of the new transformations on which Civil Law is based today, which is no longer based solely on a logic of priority protection of heritage, but as a vector capable of capturing the axiological dimension of the system, whose central focus is on the priority protection afforded to the person.