The Application of Substantial Conversion in Family Law: towards a Functional Interpretation of Succession Agreements and Legal Transactions

Abstract

This article discusses the application of substantial conversion in family law based in a decision by the 10th Private Law Chamber of the São Paulo Court of Justice. The case involved the possibility of converting a succession agreement into a donation, based on Article 170 of the Civil Code. In the contract, the ancestor advanced part of the inheritance to their descendant, who then renounced their right to the inheritance. In this context, the article discusses both the inadequacy of the generic and abstract prohibition of succession agreements and the role of the institute of substantial conversion in the legal system. It is argued that substantial conversion serves as an institute that allows for a functional analysis of the legal transaction under concrete circumstances, acting as a safeguard for the declaration of intent and the parties' contractual autonomy if the requirements enabling it are met. It is understood that in the case under review, the São Paulo Court of Justice appropriately applied the institute, prioritizing the functional aspect and the protection of the parties' expectations over strictly formal aspects.