Understanding Property Types in Brazilian Civil Law

Posted on Jan 17, 2025 in Law & Jurisprudence

Movable Property

  • By Movable Type: Those that can be moved without the occurrence of the destruction of its substance or its social-economic function is lost.
  • Livestock (Art. 8, Part I, CC): Goods moving under its own organic, susceptible of ownership (any animal, but here in Brazil primarily cat, dog, ox, etc.. Because they are assigned values).
  • Movable by determination of the law (Art. 83 CC): The energies of economic value (electric, wind, etc.), any right in rem in movable property (pledge), and finally the economic value of personal rights (right to credit).

Fungible, Infungible, and Legally Infungible Goods

  • Fungible goods: Those that can be replaced by others of the same quality, quantity, and species. Are movable. (e.g., money, car, pen, etc.).
  • Infungible Goods: These are goods that cannot be replaced by other similar (e.g., artwork, historical documents, etc.).
  • Legally Infungible Goods: Due to the autonomy of the will, the law allows fungible in nature can be regarded as fiction by infungible (e.g., watch with sentimental value).

Note: The study of this class of goods is important to understand the two types of loan agreement existing in Brazil.

  1. The Loan: Loan of fungible goods, also called a consumer loan (i.e., loan payments because you return the same amount, but on different notes).
  2. Lending: Loan and infungible, also known as loan for use (you use and return exactly what you got – loan book in the library).

Divisible and Indivisible Goods

  • Divisible goods: Are goods that can be fractionated, because each party holds a fractional amount proportional to the whole or does not lose its social function (e.g., land, which can be divided into lots, gold bars, etc.).
  • Indivisible Goods: Cannot be fractional, since the shares would lose value in proportion to the whole or destroy the function of the social good. (e.g., home, table, book).
  • Legally Indivisible Goods: It may be that under the will of the parties quite naturally divisible by a fiction becomes indivisible (e.g., collections of books, records, etc.).

Goods

Opening Remarks

Goods: Object of the legal relationship.

Concept

Useful things and rarely susceptible of appropriation by man and have economic valuation.

  • Possessions: Palpable matter can be felt.
  • Intangible property: The right to innovation, intellect, etc. (e.g., credit, idea, etc.).

Note: res nulius goods: never been anyone, but may be appropriate (e.g., fishing, pearl); res derelict property, but someone already threw out the person in order not to have it more – something no owner. Likely to be appropriate.

Real Estate

  • Real Estate in nature: Soil (e.g., indisputable), airspace above (e.g., debatable) – Art. 79 CC.
  • Listings per accession (grip) (Art. 79 CC):
    • Natural: Occurs directly from nature – (e.g., tree, island, etc.).
    • Artificial: From industry, the work of man – (e.g., bridge, house, building, etc.).
  • Real Estate by operation of law (Art. 80 CC):
    • Rights in real estate: They are binding on all people – Erga omnes; are therefore considered to have the security of public record that is – rem certificate (a document that proves obligation on thing (res).
    • Right to open succession (inheritance).

Real Estate by Operation of Law

There are goods that the civil law considers property by law enforcement, this is because as we know any deal involving real estate requires two specific procedures:

  1. Registration at the Property Registry (IR).
  2. If the owner is married must agree to the spouse unless the property system is the separation.
  3. The real property, for example, mortgages are considered property by law to provide greater legal certainty to society precisely because there must be registration with the competent body – the Real Estate Registry.
  4. The second case of real estate by identifying the law is the right of succession to open heritage actually means. Whenever a person dies that the law requires all the assets of the deceased is brought together so that the creditors are paid and if there is any surplus to be shared among the heirs. So even if the deceased has left only movable property, the whole left by him, that is, the set of assets and liabilities is considered property until it is done sharing.