A doação inoficiosa e a (in) eficácia do ordenamento atual na reparação de prejuízos dos herdeiros necessários.

Abstract

The versatility of the donation contract and its ease of application across various areas of civil law make it almost impossible to properly regulate it for all the numerous possible practical case scenarios. Based on this premise, the present thesis is a study on the methodological effectiveness of the Brazilian legal system in repairing the damages caused by the characterization of an inofficious donation, where concepts and characteristics of contract law, specifically inofficious donation, its interrelationship with succession law, and its practical aspects were explored, as well as the current jurisprudential stance in (dis)compliance with legal provisions that address the declaration of the nullity of the legal act, the statute of limitations, and the reparatory effects legally ensured. Regarding the methodological aspect, the deductive scientific method was used, alongside the historical and comparative procedural methods, through a qualitative approach, based on bibliographic technical procedures. The general objective of the study was exploratory and explanatory in nature, referring to civil legislation, scientific articles, and jurisprudence, all considered indispensable to the construction of the study. The work was divided into three chapters, each addressing a specific branch that the broad theme correlates with. The first chapter focused on contract law and its specificities, ultimately narrowing down to inofficious donation, the central instrument of this work. The second chapter aimed to clarify the direct relationship between contract law and succession law, demonstrating the connection between inofficious donation and concepts such as opening, acceptance, renunciation, or exclusion from succession, the order of inheritance, and forced heirs. Finally, in the third chapter, the different perspectives and divergences shaping the theme were discussed, starting with the concrete definition of when the act becomes invalid due to excess, the controversial characterization of inofficious donation as an invalid or voidable legal act, and the possibility of applying a statute of limitations for filing an action to reduce the donation once the irregularity is confirmed, considering the moment of occurrence. In the end, it was concluded that the application of a statute of limitations for an act characterized as void can have contradictory effects concerning the constitutional guarantee of the right to inheritance and the protection of legitimate succession, limiting the affected heir's ability to claim reparatory action against an invalid legal act due to legal prohibition, ignoring normative provisions and principles, and ultimately undermining the guarantee of rights, justified by the argument of preserving legal certainty.