The Proprietary Paradigm Of The Emphyteusis In The Brazilian Legal System: Between Anachronisms And Resistances

Abstract

The emphyteusis, aforamento or emprazamento, has already been configured in Brazil as the only form of land concession after the abolition of the sesmarias regime. This proprietary paradigm anticipates in years the social function of property, through the obligations that substantiate its legal nature. Today, after a troubled existence, the institute was abolished in the Civil Code of 2002, however, the relations already constituted are still governed by the provisions of the Civil Code of 1916 and this is the reality of hundreds of cities in Brazil. Thus, the purpose of this article is to analyze whether the emphyteusis, notwithstanding its legislative extinction, is a concrete and impacting reality in the Brazilian legal system. For this, the hypothetical-deductive method was applied and as methodological procedures the bibliographic-documental review and jurisprudential research were used. The data used were generated in the electronic portals of the STF, the STJ and in each of the 26 State Courts of Justice, plus the Federal District Court of Justice. The main result indicates that the legislative extinction of the emphyteusis has potentially increased the legal insecurity of relations and the inofficiousness. As a conclusion, the suppression of the institute from the Brazilian legal system has been configured, in a preponderant way, as a political-economic choice and not from a legal unfeasibility.