Comparative Analysis Between the Civil Code of 1916 and the Civil Code of 2002 and the Controversies about the Inofficious Donation: Are We Facing Legal Uncertainty?

Abstract

This article analyzes the donation made from ascendant to descendant and its effects in the field of inheritance law. Although the current legislation allows this type of donation, it imposes as a condition on the donor the preservation of half of his assets in life. The law makes this imposition, in order to ensure the legitimacy of the necessary heirs and, thus, any donation that exceeds 50% of the totality of the donor's assets, characterizes the so-called inofficial donation. Although the text of the law may seem clear, it is necessary to contextualize the donations made from ascending to descending, having as it’s main focus unofficial donations and the legal consequences arising from this legal violation, especially in what concerns refers to invalidity predictions, as well as their respective procedural deadlines. As a methodological option, the deductive and dialectical method is used, aiming to oppose the devices listed in the Civil Codes of 1916 and 2002, and exploratory, since it expands the investigated phenomenon, allowing a greater understanding of it. The research was outlined through the bibliographic reference of books, precedents and scientific articles on the subject. In order to delimit the theme, this article does not cover fiscal and social aspects about the donation. In the end, it is possible to perceive that the doctrinal and jurisprudential divergences about the donation that exceeds the legal limit bring ostensible legal insecurities, so that the uniformity of understandings is essential in order to preserve the rights of the good faith donor.