Abuso do direito nas relações jurídicas possessórias

Abstract

The main purpose of this essay is to demonstrate that the theory of the abuse of rights can be applied to all of the possessory situations within the obligational legal relations, to the possessory situations itself and in the family and succession law. This theoretical study has as a starting point the origins of the abuse of rights in the Roman Law, as well as the jurisprudence and foreign law, is supported by the evolution of the abuse of rights in the Brazilian law under the Federal Constitution of 1988, especially after the implementation of the Civil Code of 2002. The phenomenon of the constitutional of civil law is the central axis of the dogmatic framing of the abuse of rights in an unitary and open law system, which finds its axiological basis for the assignment of the juridical positions to its holders in the principals of the dignity of the human person, of the material equality and of the solidarity. This assignment undergoes a constitutional analysis to the conformation of the private law within the fundamental and social rights which must guide the conduct of the right holders in a society based on the democratic consent, otherwise there will be abuse of rights for the transgression of the finalistic element of the rights and for violation of the obligation related to the reliability of the legal relations. The acknowledgment of the possession as a social fact, propellant of a possessory right which finds its internal purpose in the protection of the existential, economic and social interests of the people, as well as a limit to human behaviors, allows the construction of the concept of the abuse of rights in the possessory legal relations