Abstract: Private and public property, due to their similarities, are subject to constitutional principles and provisions, despite slight differences in their legal characterization—such as the fact that public property is not subject to statutes of limitations. This distinction must respect other constitutional provisions, since the supreme legal order encompasses various provisions necessary for fully understanding the meaning of each article of the Constitution. It must be understood that the Constitution protects only those assets that truly fulfill a social and dignifying purpose warranting a distinct legal framework. Consequently, it is possible to acquire ownership by adverse possession of assets that do not serve a genuinely public and social purpose.
Table of Contents: 1. Property—historical background; 2. The social function of property, public welfare, and individual dignity; 3. Constitutional hermeneutics; 4. Interpretation of Articles 183, §3, and 191, sole paragraph, of the 1988 Federal Constitution.
“If language were an entity separable from the overall reality of society, then interpretation could once again become an activity that relieves the jurist of assuming social responsibilities.”
Pietro Perlingieri
1. Property—Historical Background.
Historically, it is evident that, through the manipulation of metals, fire, and greater opportunities for development, humans sought to settle down and define—even if collectively—their living space. He left behind his nomadic existence (Paleolithic and early Neolithic periods) and began to cultivate the land, settling there.
It is evident that property—traditionally defined as “the right granted to a person over a thing, whether tangible or intangible, in its entirety, within the limits of public policy” (1)— represented a relative advancement for humanity and enabled a greater degree of interconnection among people. Thus, throughout history, it has held a position of great significance and interest.
In Egypt, beginning in the 30th century B.C., following its union with the Macedonian Empire, land ownership—which had previously belonged to clans (communal property)—began to be centralized in the hands of the pharaohs, nobles, and priests. Private property was transferred in three ways: “by agreement between the seller and the buyer, with the delivery of the property and payment of the price; by judicial order, with the buyer’s name entered in the land registry; and also through payment and an oath by the seller” (2).
Often, the accumulation of land was permitted only to citizens who possessed a certain status, as in Syria, where warriors and priests—in addition to other privileges, such as tax exemption—could hold large tracts of land under their control.
During the 7th and 5th centuries B.C., migrations of Greek populations occurred to various parts of the Mediterranean as a result of population growth and internal conflicts, caused primarily by the need for new agricultural land. There were three types of property: “communal, individual, and family property; in the first case, everyone worked and shared only the produce; in the second, the owner had free disposal of his property; and family property corresponded, roughly speaking, to what is today, roughly speaking, the ‘bem de família’ (homestead)”(3).
Although a well-developed definition of property is not found in Roman writings—since their jurists were more concerned with its elements than with its conceptualization—its essence was captured in the maxim: Dominiu est ius utendi et abutendi, quatemus iuris ratio patitur (4). Rome, the great city, had its polis formed by landowners, the pater familiae. “Although seemingly individual, property was, at least to some extent, in fact familial or communal” (5).
Between the 1st century B.C. and the 3rd century A.D., new techniques and construction methods were introduced in China, among them, unfortunately, property shifted from a communal system to territorial ownership by the nobility; peasants became serfs, paying dues to their lords for the use of the land.
One of the main characteristics (if not the main one) of feudalism was the close link between authority and land ownership. The nobility and the clergy centralized territorial control in their hands, requiring their serfs to pay a tax for the use of the land. According to Leo Hüberman, this system had three defining characteristics: “first, arable land was divided into two parts, one belonging to the lord and cultivated solely for him, while the other was divided among numerous tenants; second, the land was cultivated not in continuous fields, as it is today, but through a system of scattered strips. There was a third striking characteristic—the fact that the tenants also worked on the lord’s estate” (6). We had overlapping domains: “the sovereign’s eminent domain, hovering above the feudal lord’s beneficial domain. Even today, in emphyteusis, one finds a form of survival of the medieval dualism of dominion” (7).
In our own time, a legion of the excluded finds itself deprived of the right to establish itself as landowners, living on the margins of society. Such was the case in South Africa, where the apartheid regime prohibited, among other things, Black people’s access to property, and such is the case even today in Brazil, where landless people are struggling for the chance to one day cultivate a plot of land.
It is evident, therefore, that the distribution and regime of land ownership have always been closely linked to the role of the State, which is responsible for the control and optimal use of the territory, thereby enabling either greater social well-being or greater marginalization of individuals—all depending on the path one chooses to follow.
2. The social function of property, public welfare, and individual dignity.
We all have the right to live—not merely to exist, but to lead a fulfilling life characterized by dignity and well-being, for “to live is nothing other than a daily value-based referendum, aimed at the ever more perfect realization of the ends embodied in our inalienable individuality”(8). We have the right to exist, to fight for life; to remain alive. We have, in short, the right to a dignified existence, to live in honorable conditions. And this right is the source of all other legal rights, the foundation of all society, for man cannot be a means, but rather an end, an “end in itself”; the greatest support for his existence being the proper course of his life, full of harmony and dignity.
That being the case, a society—born of the union of people in pursuit of better conditions for survival—cannot be characterized as just if it does not guarantee and enable the individual to achieve a good life, nor is given the opportunity to develop as a productive individual—a significant factor for the entire social apparatus—and is instead relegated to the margins, to a subhuman existence; for “the idea of justice is essentially correlated with that of the person, viewed not as an absolute and unconditional value, but as the foundational value of reference revealed in the historical-social process, where it rises to the transcendental category of an axiological invariant, from which Justice immediately results”(9). And our Constitution, in Article 1, Section III, establishes the pursuit of human dignity as the foundation of our State, thereby recognizing the extreme necessity of having, at the state and social levels, dignified and honorable individuals—active beings capable of defining themselves as a real and constructive reality, steadfast and consistent in their roles—who are essential to the building of a nation. For this reason, one must not accept the idea of the common good as an absolute and supreme means in relation to individual value, granting it the power to suppress the relevance of the individual or interpreting the common good as the objective of any act linked to the state entity, since public entities may contain corrupt sectors that do not respect or consistently seek the general welfare; thus, “the notion of the common good is relative. The mistake of those who dissociate the idea of the common good from the idea of justice lies in considering the former a ‘totality’ and the latter a proportion. We understand that both notions are relative. To conceive of the common good as a totality would be to nullify individual tendencies and attributes, to deny the inevitable conflicts that exist in society, and to destroy the values of the individual in relation to those of the community”(10) and, as we have seen, the idea of justice is linked to that of the person, establishing that the common good must be grounded in respect for the individual nature of persons.
As one of the parties to the Social Contract, the State must fulfill its role in the agreement and, as the current sovereign, ensure the well-being and dignity of its subjects—potential sovereigns— since its role is centered on defining and expanding the possibilities of human beings—who are holders of rights and duties vis-à-vis the State and, as such, are entitled to challenge the State regarding its guarantees.
For all these reasons, in our Federal Constitution, property is accorded special characteristics, taking on dimensions of public relevance. It plays the same crucial role, and the owner or possessor (this term encompassing not only ordinary citizens but also legal entities and the State) must use it in a manner that fulfills its social function, that is, property must be used in a manner that promotes social well-being, as it is the fruit of human endeavor and dignity. Thus, “the presumption of mutual trust and good faith finds its counterpart in the social function implicit in the right to property, in the sense of consideration for social solidarity, encompassing the owner’s rights and the duties imposed upon them by legislative policy”(11). That being the case, the concept of property is no longer understood as an absolute factor, but rather, as Ruggiero explains when commenting on Italian law, “that absolutism of the powers of enjoyment and disposition, which our legislature elevated to a fundamental characteristic in the definition of property, must therefore be understood not in its broadest and most hyperbolic sense, but with rational limitations imposed by the modern concept of property itself”(12).
This social function is linked to the precepts of the Constitutional Economic Order (Art. 170, caput, II, and III), since the purpose of the latter is to ensure a dignified existence for all, in accordance with the principles of social justice. Thus, “a social mortgage weighs upon all private property”(13), and public property enjoys this status only if it is strictly linked to its social utility. This link is understood because the “degree of complexity now attained by the institution of property derives, undeniably, from the degree of complexity of social relations” (14). Today, labor, use, and the measured and socialized utilization of property are no longer merely a means of acquiring it, but rather a means of legitimizing and validating property; thus, “every man has the right to own land, more by virtue of his labor than by virtue of a title” (15) (emphasis added). This framework, which arises from the necessary social limitation of property, is bounded by respect for the three basic rights that, today, are established by legal doctrine in the relationship between the State and the individual, namely: the right to autonomy (respect on the part of the public entity for the basic variables of citizens’ individual development), the right to participation (giving the individual the opportunity to intervene in the conduct of public affairs as both steward and guardian of the common good), and the right to provision (based on positive freedoms, establishing the obligation that state action must aim at the maximum development of those subject to sovereign order). Thus, the limitations imposed on property determine the ideals of sociability and functionality of private and public assets, as they set the goals for shaping the right to property itself. This leads us to note that property is characterized today no longer by its link to ownership but rather by its intended use.
A distinction must be made between the social function that property must fulfill (which constitutes and is integral to the right itself) and the system of limitations on property, since the latter impedes the exercise of the right, whereas the former, on the contrary, “manifests itself in the very configuration of the right to property, concretely serving as a defining element in the predetermination of the modes of acquisition, enjoyment, and use of property.”(16) The social function, therefore, determines the configuration of the right to property, establishing the boundaries of the institution, defining its proper characterization, and identifying the flaws in its structure. Such a functional structure finds its foundation in the pursuit of social justice, which leads us to the definition of the common good; for, in the final analysis, these are “synonymous expressions, signifying both intersubjectivity and intercommunicability—the latter being the feature that emerges from contemporary legal experience— such that a society will be all the more just the more people communicate with one another—not only through words but also through action—which involves the growing participation of all in the goods of life that result from the collective effort of the human species in its ceaseless cultural toil”(17). That being the case, the common good cannot be realized if human beings cannot attain their social reality through constructive participation and based on the development of these elements as historical-social factors, with the value-laden significance that is inherent to them and within the legal framework guaranteed in a people’s Lex Legum.
Therefore, property—before establishing title, status, or power—must be characterized as an instrument of happiness and social well-being, thereby securing its place within the constitutional framework. It is defined as a factor in the feasibility and rationality of a community, with its social significance and utility serving as parameters for characterizing and specifying the rights and guarantees that may restrict it, both at the constitutional and infra-constitutional levels.
3. Constitutional Hermeneutics.
To clearly and sensibly understand the content and dogmatic validation to be addressed in the next topic, one must grasp the modus operandi of the constitutional hermeneutic system, with a view to interrelating its various principles and, based on well-established doctrine, derive the meaning of the articles relevant to this discussion.
First and foremost, one must distinguish between interpretation and construction, since “interpretation(18) is confined to the text, like traditional exegesis; whereas construction goes beyond this, examining legal norms as a whole and in relation to legal science, and from the general consensus deduces a systematic work, an organic whole; one studies the law proper, while the other’s primary objective is to discover and reveal the Law; the former pays attention to the words and their respective meanings, the latter to the scope of the text; the first breaks down, the second reconstructs, comprehends, and builds” (19). And it is precisely this construction that will be pursued in this study, as a means of enabling the full realization of the ideals of dignity and good living enshrined in the Lex Legum.
At the outset of any hermeneutic process, we must explore certain parallel paths that are of fundamental importance for moving forward. “The basis of all exegesis is a text that must be understood, and the establishment of its existence and binding force is called criticism” (20), “this is always useful and, at times, indispensable as a preliminary to hermeneutics, a prerequisite for the general application of the law; it precedes interpretation” (21). This entire construction of a critical, visionary foundation for the Constitution will make it possible to integrate the guarantee-based provisions and the general norms set forth therein, since the Constitution is structured as a legal system, and “by legal system we mean the perception of the set of sources within a conceptual framework that, on the one hand, represents the profound meaning of each norm through its connections with others and the connections of these with the principles; on the other hand, expresses the unity between the legal framework and its social applicability, through the rooting of law in culture understood in a broad sense”(22). It is within this framework that the meaning of constitutional provisions must be situated and determined, allowing for the identification of their scope and intent.
Constitutional hermeneutics passes through certain filters that are of extreme importance for our analysis, one of which is the political filter, since “Constitutional Law is based on the political element, which is essentially unstable; the exegete pays special and constant attention to this particular aspect. In that branch of Papinian’s science, legal and social values prevail. Institutions must be considered and organized in such a way that they correspond to political needs, to the general trends of the nation, and to the coordination of the people’s lofty hopes and just aspirations” (23), based on legal certainty, “order, as a form, surrounds the lives (or the ‘roles’) of men; as a prescription, it unfolds into commands, which are expressed as rules (or norms) that bind or establish their conduct—though in another respect they situate and protect it. To be within an order is to be situated and secure”(24). A second element is the historical one, for legislative technique seeks to address situations that have yet to arise in society; “the fundamental code both anticipates the present and prepares for the future. Therefore, rather than adhering to a strict and narrow interpretive technique, the aim is to arrive at a meaning that renders the great principles of government effective and efficient, rather than one that contradicts them or reduces them to ineffectiveness”(25). Third, systematicity, since “interpretation, directed toward the concrete, is correlated with the applicability of certain precepts and thus presupposes the existence of some order”(26) and, from this systemic structure, it follows that “every interpretation, when it comes to social structures and their application, has to do with principles. But these principles must be articulated within an order and exist within it as meanings so that the interpretive task is required for the purpose of ‘unraveling’ meanings and tracing them back to the principles”(27). These various facets of hermeneutic work are centered on the very variability of the interpretive function, enabling a dignified and just construction in light of the most diverse canons, for “a purely formal study of law focused on purely logical similarities between norms, legal institutions, or subjective situations (deliberately excluding any consideration of their function) does not constitute a valid contribution to legal scholarship,”(28) and the intellectual exploration of all the aforementioned aspects is therefore deemed necessary.
The Constitution is the supreme law of our legal system, and as such it enjoys a certain status which, although it does not distinguish it in its origin from other laws, “since the Constitution is also a law—one that merely has greater force than the others over which it prevails in the event of a conflict—the processes and rules of hermeneutics commonly applied to private law contribute to its understanding: the philological, historical, and teleological elements, as well as social factors, etc.”(29), precludes decisions contrary to the Lex Legum, since “one cannot rule against the express wording of the Constitution based on historical considerations or so-called Natural Law. The provisions of the supreme law are upheld, except in cases of strong presumption to the contrary: at times, the context itself provides grounds to restrict, expand, or supplement, or to determine”(30).
Finally, it should be remembered that constitutional provisions encompass the entire social and legal order, so as to bring under their umbrella the entirety of a country’s people and relationships, and, “as a political act of decision regarding the mode of existence and organization of society, the Constitution is by no means a sphinx demonstrating imperturbable impartiality in governing social realities: in reality, the Constitution requires that society, the State, and each and every individual behave in a specific manner in accordance with the abstract situation it envisions; it sets forth explicit and implicit objectives that must guide all actions of society and the State”(31).
4. Interpretation of Articles 183, §3, and 191, sole paragraph, of the Federal Constitution of 1988.
When analyzing a provision of the Constitution, one must understand not only its literal meaning but also the legislator’s overarching intent (which is distinct from the mens legislatoris), that is, the legal framework enshrined in the provision under analysis, based on the systematic whole established by law. Through this approach, one can bring to light the intrinsic nature of the provision, revealing its structure and composition, thereby enabling a full understanding of the scope of the rule it contains. That being the case, we must bear in mind that a country’s Constitution does not seek to regulate specific situations, but rather to establish the parameters for validating an entire legal system. Its purpose is to establish general rules for the interpretation and understanding of the values and aspects that form the core of the existing legal order. It follows, therefore, that “literal, logical, and systematic interpretations are not—and cannot be—distinct phases, either chronologically or logically; they are aspects and criteria of a unified cognitive process. It would be absurd to recognize among these criteria a kind of competition or contrast, almost as if they were contenders in conflict with one another, vying for exclusive application,”(32) whereas, on the contrary, they must be applied jointly to best understand the normative intent.
To make this goal a reality, constitutional norms are understood not in and of themselves, but through the systematic lens determined by all their provisions and definitions, establishing a coherent whole that aims for the common good, always respecting the citizen. And this understanding has its origins in the work of the interpreter, for in laws there are “principles linked to systems, and there is the application of the system to specific cases. All the institutional frameworks of modern politics—always linked to the State and the legislature—have been grounded in doctrinal arguments and specific verbal formulations”(33).
Based on these precepts, it can be observed that Article 183, paragraph 3, and Article 191, sole paragraph, of the Federal Constitution prescribe much more than they literally express, providing public real property with protection against adverse possession, but also making it possible, through a systematic interpretation of these provisions, for this civil law doctrine to apply to properties that do not fall under that classification.
In this section, we will seek to establish distinguishing criteria for understanding the public nature of a property and the legal feasibility of such an approach.
First and foremost, we must accept as valid the assertion that “public real property shall not be acquired by adverse possession,” a rule grounded in the importance and necessity of greater protection for public assets, so that they are not left vulnerable to potential attacks or losses. At the same time, private property must be respected so that the ideal of legal certainty is not lost amid a nebulous and strictly positivist hermeneutics. For even in the clarity of the assertion, interpretation must not cease; thus, with regard to normative provisions, “no matter how clear they might be, as Ulpian emphasized, they did not dispense with interpretation. Quamvis si manifestissimum edictum praetoris, attamen non est negligenda interpretatio eius (D. 25, 4, de inspiciendo ventre, 1, 11)”(34). Furthermore, one must seek to situate the constitutional provision within the social context, “since every source is part of an order, and the rule is a means of expressing that overarching order. Therefore, the interpretation of a source is not carried out in isolation, treating, for example, a text as if it were valid outside of time and space. On the contrary, it results from the insertion of that text into a given legal framework”(35).
In light of this assertion, public goods must be understood on the basis of a communal foundation of social satisfaction and utility, since the public or private character is not linked to mere title, but rather to the actual realization of their applicability and public or private disposition. With this in mind, we establish the existence of two criteria for determining the nature of a good: a formal aspect (title—ownership) and a material aspect (utility—function). It follows that title alone can determine who the owner is, but not whether the property in question is public or private; for ownership specifies who holds title to the property, relating to an aspect extrinsic to the asset itself (based on a Kelsenian view of this institution, which is grounded in interpersonal relations of an erga omnes nature); the intrinsic reality of the asset, however—its nature and legal status—is linked to its communal utility and functionality. It is use that characterizes the asset itself; its materiality determines its existence (and its mode of existence), and there is a relationship between use and ownership, such that “usus is the oldest, most rudimentary form of holding a thing, the ownership of which belongs to us. Usus has a broad meaning, which in principle accurately reflects the situation of those who work, cultivate, and make use of the land, without holding exclusive legal power over it”(36). Such a distinction, which seeks to validate the nature of a good through its ownership, can be found in the brilliant definition provided by Celso Ribeiro Bastos, “in verbis”: “public goods are those that belong to the domain of legal entities governed by public law. However, not all such assets are subject to a public law regime. They belong to the public domain without, however, being subject to the legal rules to which public assets in the full sense of the word are normally subject. These are public by their intended use and not merely by ownership” (37). To systematize this idea, we can understand that “public assets, in the strict sense, are those that belong to state entities (the Federal Government, Member States, the Federal District, Territories, and Municipalities) under public law. The assets they own under private law are not public assets in the strict sense”(38).
The Federal Constitution stipulates in Article 5, XXIII (similar to Article 42, paragraph 2 of the Italian Constitution and Article 62. 2, “c,” of the Portuguese Constitution), that property shall fulfill its social function; and in Article 170, III, it establishes the social function of property as one of the principles governing the economic order. Thus, not only must private property fulfill its social function, but also—and a fortiori—public property requires, as a condition of its existence, that it be useful and provide benefits to society as a whole; this capacity to satisfy collective interests is the hallmark of the dogmatic definition of the public good. From the moment the State becomes part of the social world, it must submit to the guidelines established by citizens for all its actions and may not amass abusive or absurd powers, as these would undermine the State’s role as an entity capable of achieving collective happiness.
The public good does not arise from mere title; rather, its origin lies in the degree of social relevance and utility it may demonstrate.
Based on this understanding, constitutional protection would not be effective in the case of a good that, although legally linked to a political entity, fails to fulfill its social function and remains in the possession of a private individual for a period sufficient to establish adverse possession, since the Lex Legum does not aim to establish the absolute superiority of the State, but rather full equality in social relations between the State and the citizens who comprise its people. For it is clear that constitutional protection is based on the social interest inherent in the asset, since the provisions of the Constitution refer to the assets themselves and not to the entity that holds them, thereby creating objective protection (based on the asset’s actual social purpose) rather than subjective protection (because the asset is tied to the assets of a public entity).
This assertion should not be seen as a means of rendering constitutional definitions meaningless, since interpretation aims to give substance to an article and not to render it a dead letter; to those who understand the right to property based on the actual use of an asset, the reply is that the owner can assert his rights over an asset even by ceasing to use it—as in the case of a farmer who leaves a field uncultivated or without livestock so that the land can recover after exhaustive use. Public assets, on the other hand, inherently possess a character of collective reserve; thus, state entities may wish to keep certain assets unused, but as a means of protecting themselves economically, provided they show a minimum of attention to these assets by asserting their powers as owners as soon as they find themselves deprived of them. Furthermore, there are certain assets—for example, a country’s border zones—which, even when unused, are public due to their great importance to the community; similarly, archaeological sites and mineral reserves cannot be allowed to fall into private hands. This perspective, rather than undermining the norm, ensures its alignment with the constitutional system, providing it with progressive legal validity and bringing its existence and effectiveness into closer alignment with social norms, since validity—which is a prerequisite for effectiveness (though not to be confused with it)—“necessarily implies a reference to the values that gave rise to the legal rule, as well as to the factual conditions capable of ensuring its social effectiveness”(39) (emphasis added).
Thus, the conditions would be met for a judge to consider and grant a claim for adverse possession of a property that is formally public but has ceased to serve society for a considerable time and is now considered part of a citizen’s assets, and it is not plausible for that citizen to claim mere compensation for improvements, but rather to receive full title to the land on which they have settled and built an entire life. Thus, the following are established: the legitimatio ad causam (the individual has been in possession of the property for some time, with the defendant being the public entity that has been negligent in its duty to safeguard public assets and interests, thereby establishing full standing as both plaintiff and defendant in the action), and the interest in bringing the action (the plaintiff cannot proceed on his own initiative; the action, according to Pontes de Miranda, is “declaratory, in which the defendants are any interested parties and the adjacent landowners”(40) and suitable for determining who should be considered the real and effective owner of the property, since “this is a declaratory action with mandatory effect” (41), one of the effects of which is registration) and the legal possibility of the claim (the constitutional rule of non-prescription does not serve to protect formally material property, but rather those properties that materially meet the needs of society, provided there is no direct obstacle to such reclassification—as already mentioned, the case of borderlands)(42). Along these lines, we limit our discussion to so-called unclaimed lands, since, with regard to these, legal doctrine is partially in agreement regarding their subjection to a statute of limitations. We seek to extend the concept of non-public ownership to all assets that have been awarded to a public-law entity and that are not fully dedicated to a public and social purpose, including a wide range of public assets and even special-use assets that have been left to the ravages of time without the entity that designated them having maintained the existing service or special purpose, whether through legal or tacit decommissioning.
Our interpretation does not conflict with the provisions of STF Precedent No. 340, which states, verbatim: “Since the Civil Code came into force, dominical property (bens dominicais), like other public assets, cannot be acquired by adverse possession” (emphasis added), for it should be noted that the Supreme Court’s ruling prohibits adverse possession of public property but does not define or specify what constitutes such property.
With these brief observations, we aim to contribute to studies on adverse possession, drawing upon the most authoritative legal doctrine (already reflected by leading scholars, who share a similar view that restricts the applicability of the aforementioned constitutional provisions) by characterizing property according to its intended use rather than its ownership, so as to provide a new understanding of the constitutional provisions and establish that it would be socially beneficial not to compensate citizens for improvements they have made to the property, but rather to grant them the title of owner of a property that, by its nature, lacks social utility sufficient to classify it as public. All of this is for the benefit of people who, in good faith, settle on land and, after years, discover that it belongs to a public entity, forcing them to vacate the premises, leaving a piece of their lives rooted in those places, even though these properties do not, in reality or in fact, possess any social relevance.
Notes:
(1) DAIBERT, Jefferson. Direito das coisas. Enciclopédia Barsa. Enciclopédia Universal. p. 124, citado por CAMPOS, Antônio M. Teoria e Prática do Usucapião. São Paulo: Saraiva.1987.p. 43.
(2) Idem. op. cit. p.41
(3) Idem. op. cit. p. 41
(4) Neste sentido ver FACHIN, Luiz Edson. A função da posse e da propriedade contemporânea. Porto Alegre: Sérgio Antônio Fabris.1988. p. 15.
(5) BESSONE, Darcy. Texto extraído de palestra proferida na Universidade Federal de Viçosa, em 06 de julho de 1992.
(6) História da riqueza do homem.trad.Waltensir Dutra.15.ed.ZAHAR.1979.p.14 citado por FACHIN,Luiz Edson.op. cit. p. 15.
(7) BESSONE, Darcy. Texto extraído de palestra proferida na Universidade Federal de Viçosa.
(8) REALE, Miguel. Nova fase do Direito moderno.2.ed.rev.1998.p.40.
(9) Idem.op.cit. p.40.
(10) TENÓRIO, Oscar. Lei de Introdução ao Código Civil Brasileiro.2.ed. Rio de Janeiro: Editor Borsoi, 1955.p.159.
(11) Conforme ESPÍNOLA, Eduardo. Posse, propriedade/compropriedade ou condomínio/ direitos autorais. Rio de Janeiro: Conquista. 1956.p.127 e ss, citado por FACHIN, Luiz Edson.op. cit. p. 17.
(12) RUGGIERO, Roberto de. Instituições de Direito Civil.v.2.trad. da 6.ed. italiana por Paolo Capitanio; atualização por Paulo Roberto Benasse. Campinas: Bookseller, 1999.p.469.
(13) SILVA, José Afonso da. Curso de Direito Constitucional Positivo. p. 285. In the same vein, Domenico Sorace, in concluding that the individual must be understood not only “uti singulis or uti civis, but rather uti socius” (Espropriazione della proprietà e mistura dell'indenizo. Milano: Dott. A. Giuffrè. 1ª parte. 1974.p.280, citado por FACHIN, Luiz Edson.op. cit. p.18.
(14) FACHIN, Luiz Edson. Op. cit. p. 18.
(15) DUQUE CONEDO, Roman J. La posesión civil y la posesión agraria. 1º Encontro Internacional de Jus-Agraristas.1981. Belém - BR, citado por FACHIN, Luiz Edson. op. cit. ps. 18-9.
(16) SILVA, José Afonso da. op. cit. p. 286.
(17) REALE, Miguel. Op.cit.p.39.
(18) “The term interpretatio is used in two senses: broad and narrow. In the broad sense, it refers to all aspects of Roman jurisprudence and corresponds roughly to what modern scholars call ‘doctrine’ (...) In the narrow sense, interpretatio is the determination of the meaning and scope of the law (mens legis)”- PEIXOTO, José Carlos de Matos. Curso de Direito Romano.t.1.São Paulo: Renovar.1997.p.215.
(19) MAXIMILIANO, Carlos. Hermenêutica e aplicação do Direito. Rio de Janeiro: Forense. 12.ed.1992.p.40.
(20) SAVIGNI - Citado por MAXIMILIANO, op.cit.p.41.
(21) MAX GMÜR, - Citado por MAXIMILIANO, op.cit.p.41.
(22) PERLINGIERI, Pietro. Perfis do Direito Civil; Introdução ao Direito Civil Constitucional.3.ed.rev.ampl.Rio de Janeiro: Renovar, 1997.p.58.
(23) MAXIMILIANO, op.cit.p.305.
(24) SALDANHA, Nelson. Ordem e Hermenêutica. São Paulo: Renovar. 1992.p.243.
(25) MAXIMILIANO, op.cit.p.306.
(26) SALDANHA, op.cit.p.247.
(27) Idem, ibidem.p.257.
(28) PERLINGIERI, op.cit.p.58.
(29) MAXIMILIANO, op.cit.p.306
(30) MAXIMILIANO, op.cit.p.310.
(31) SLAIB FILHO, Nagib. Anotações à Constituição de 1988: aspectos fundamentais. 3.ed. Rio de Janeiro: Forense, 1992.p.74.
(32) PERLINGIERI, op.cit.p.71.
(33) SALDANHA, op.cit.p.251.
(34) PEIXOTO, op.cit.p.216.
(35) ASCENSÃO, José de Oliveira. O Direito, introdução e teoria geral .São Paulo: Renovar.1.ed {8.ed.rev. Portugal}. 1994. p.323.
(36) Manuel Iglesias Cubría, Evolución historica del concepto de posesión, Universidade de Oviedo, Faculdade de Direito, 1995, p.6 e 7, citado por Luiz Edson Fachin, op.cit, p. 23-4.
(37) BASTOS, Celso Ribeiro e MARTINS, Ives Gandra. Comentários à Constituição do Brasil: promulgada em 5 de outubro de 1988.v.7 São Paulo: Saraiva,1988.p.239.
(38) Pontes de Miranda, Francisco Cavalcanti. Tratado de Direito Privado.t.2.4.ed. São Paulo: Editora Revista dos Tribunais, 1977.p.135 citado por BASTOS e MARTINS, op.cit.p.319.
(39) REALE, Miguel. Filosofia do Direito.18.ed. São Paulo: Saraiva, 1998.p.597-8.
(40) MIRANDA, Pontes de. Comentários ao Código de Processo Civil, t. XIII, arts. 796 a 889. Rio de Janeiro: Forense, 1976.p.367.
(41) Idem, op.cit. p.367.
(42) Since we have explained Professor Pontes de Miranda’s view by specifying a similarly mandatory provision, it is worth once again drawing on the teachings of this great legal thinker to determine the effectiveness of the various types of actions, as follows: “Imagine a painting that was hung in an art exhibition hall in the space designated for the works of painter B, but was actually created by painter A. If someone states that the painting was mistakenly placed on that part of the wall because the author was A, not B, this well-informed observer affirms A’s authorship, which is equivalent to declaring that B was not the author. There is an ‘is’ regarding A and a ‘not-is’ regarding B. If A did not exhibit his works and it was B who brought the painting, as if he were its author, the exhibition director can call B and tell him to remove the painting from there: in response to the harm B caused by exhibiting what was not his, the exhibition director imposes another harm—the corresponding harm, the “con-damno”—from which the technical term “condemnation” derives. Suppose B does not remove the painting. The exhibition director registers the painting as belonging to A and, after this act of establishing A’s participation in the exhibition, affixes A’s name to the canvas. It may be that the registration function is handled by a department of the institution hosting the exhibition, which reports to the exhibition director; in that case, the director orders that the registration and labeling be carried out. If A was already listed as an exhibitor, the transfer of the canvas—which was in the space labeled with B’s name—to the space labeled with A’s name may occur at B’s request, by A’s own act, or by the director’s act. By B’s act, there was voluntary enforcement. If carried out by A, it constituted taking the law into one’s own hands. If carried out by the director, it constituted compulsory enforcement.” PONTES DE MIRANDA, Francisco Cavalcanti. Comentários ao Código de Processo Civil, t.I, arts. 1º a 45.Rio de Janeiro: Forense, 1973.p.221
Bibliography
ASCENSÃO, José de Oliveira. O Direito, introdução e teoria geral. São Paulo: Renovar.1.ed{8.ed.rev.Portugal},1994. 533p.
BASTOS, Celso Ribeiro e MARTINS, Ives Gandra. Comentários à Constituição do Brasil: promulgada em 5 de outubro de 1988.v.7 São Paulo: Saraiva,1988.445p.
CAMPOS, Antônio M. Teoria e Prática do Usucapião. São Paulo: Saraiva,1987.273p.
FACHIN, Luiz Edson. A função da posse e da propriedade contemporânea. Porto Alegre: Sérgio Antônio Fabris,1988.102p.
MAXIMILIANO, Carlos. Hermenêutica e aplicação do Direito. Rio de Janeiro: Forense. 12.ed,1992.
PONTES DE MIRANDA, Francisco Cavalcanti. Comentários ao Código de Processo Civil, t. XIII, arts. 796 a 889. Rio de Janeiro: Forense, 1976.
__________. Comentários ao Código de Processo Civil, t.I, arts. 1º a 45.Rio de Janeiro: Forense, 1973.516p.
PEIXOTO, José Carlos de Matos. Curso de Direito Romano.t.1.São Paulo: Renovar,1997. 412p.
PERLINGIERI, Pietro.Perfis do Direito Civil:Introdução ao Direito Civil Constitucional. trad. Maria Cristina De Cicco. 3.ed.rev.ampl. Rio de Janeiro: Renovar, 1997.369p.
REALE, Miguel. Filosofia do Direito.18.ed. São Paulo: Saraiva, 1998.749p.
__________. Nova fase do Direito moderno.2.ed.rev,1998.238p.
RUGGIERO, Roberto de. Instituições de Direito Civil.v.2.trad. da 6.ed. italiana por Paolo Capitanio; atualização por Paulo Roberto Benasse. Campinas: Bookseller, 1999.
822p.
SALDANHA, Nelson. Ordem e Hermenêutica. São Paulo: Renovar, 1992.311p.
SILVA, José Afonso da. Curso de Direito Constitucional Positivo.15.ed.São Paulo: Malheiros, 1997.875p.
SLAIB FILHO, Nagib. Anotações à Constituição de 1988: aspectos fundamentais. 3.ed. Rio de Janeiro: Forense, 1992.444p.
TENÓRIO, Oscar. Lei de Introdução ao Código Civil Brasileiro.2.ed. Rio de Janeiro: Editor Borsoi, 1955. 548p.