The Affinity between the Best Possession and the Social Function of Possession: Material and Procedural Repercussions

Abstract

This research aimed to define the characteristics and requirements of a state of possession considered qualitatively superior to another possessory state. To this end, we investigated what the so-called “best possession” meant and what it currently means in the Brazilian legal system and what its relationship is with the social function of possession. The analysis was qualitative, with a bibliography review to deepen civil and procedural concepts, in addition to also reviewing paradigms judged by the Brazilian special court. Using the inductive method, the research established a general reference based on the knowledge of a certain number of unique data obtained in judgments of the Superior Court of Justice (STJ), that is, starting from unique data on notions of best possession, guardianship of possession and the social function of possession, a generic conclusion was drawn about the qualitative superiority of a possessory state. Based on the analysis of the normative valuation carried out by samples of legal literature and the standardization instance of federal jurisprudence, the research verified that, in possessory matters, the estimated purposes of the use of the thing are protected qualitatively differently, verifying priority protection housing-possession (possessio pro morada) and working-possession (possessio pro labore). As a contribution, the research presents a propositional thesis for the harmonization between better possession and the social purpose of possession based on the non-adoption of the expansive thesis of vicious situations of possession, since, if adopted, only the transmission of possession through a negotiation relationship would constitute a circumstance acquisition of possession be considered legitimate.