Nulidades prescrevem? Uma perspectiva funcional da invalidade

• Autor(a) principal: Dickstein, Marcelo
• Data de Publicação: 2014
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9858
• topic: General theory; Invalidity; Nullity; Statute of limitations; Functional analysis; Effectiveness; Teoria geral; Invalidade; Nulidade; Prescrição; Análise funcional; Eficácia.; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This dissertation aims at analyzing the application of statute of limitations on the effects of null legal transactions under Brazilian legal system. The study is justified because, since the effectiveness of the 1916 Civil Code, there has been no consensus in legal doctrine or case law regarding the best understanding applicable, having been established the existence of different positions. The controversy is related to classic understanding according to which nullity, being an incurable defect, based on public policy, would lead to the complete invalidity of the legal transaction, producing no effect (quod nullum est nullum producit effectum) between the contracting parties and third parties that could depend on the legal transaction if it were considered valid. Therefore, absolute ineffectiveness has been considered as the basis for the understanding that a null legal transaction would be immune to any influence of time, so that invalidity could be alleged at any moment. According to part of legal doctrine, this understanding would have been reinforced by article 169 of the 2002 Civil Code. However, it is necessary to reread the absolute ineffectiveness of nullities dogma, under the view that, although a null transaction may not produce the effects sought by the parties, it may, in practice, generate effects and consequences that cannot be ignored by Law and that, naturally, suffer the effects of time, such as, the application of statute of limitations. As so, firstly, this dissertation analyzes the premises adopted under the classic nullity theory, focusing on the dogma of absolute infectiveness of null legal transactions. Secondly, a rereading of the nullities regimen in Brazilian civil law is proposed, based on the functional perspective of invalidity, which will result in the presentation of criteria that can be used to assist in the attainment of this process, being that it shall be demonstrated that null legal transactions may produce effects that are worthy of protection by the legal system. Finally, the influence of time on the effects of null legal transactions is analyzed, in the attempt to systematize the different legal positions regarding this specific matter, especially in what regards the statute of limitations.