Accessio Possessionis and Acquisition Derived from Possession: the Impossibility of Expurgation of Possession by the Will of the Successor in a Singular Title

Abstract

This research aims to analyze and compare accessio possessionis and inter vivos succession in possession, to point out incompatibilities between the understanding that currently prevails in Brazilian legal literature and courts and the historical concepts of the institutes, based on the theory of legal subjective situations. The analysis occurred based on the question whether, given the legal regime of the derivative acquisition of rights and continuity of possession, the non-exercise of the accessio possessionis faculty by the acquirer would give rise to a convalescence or restoration of the possession of the successor in a singular capacity. For this comparison, the research used a qualitative methodology of bibliographical review of different literary and normative sources, with an analytical focus and exegesis of current norms. As a result, the research found that the failure to exercise the power of accessio possessionis does not cause convalescence or restoration of the successor’s possession in a singular capacity and that this understanding is a mistaken and contra legem interpretation, in conflict with the rules of the Brazilian legal regime in matters of possession. In Brazil, accessio possessionis is confused with singular or inter vivos succession in possession. The contribution of the research consists in the construction of a thesis to guide legal situations of continuity of possession, as the legal effects in possessory matters are shaped taking into account not the objective character of possession (fair possession or unfair possession), but its subjective character (possession in bad faith or possession in good faith). This line of understanding enables a better understanding of the legal regime of ownership in Brazil, finding support even in the Civil Code.