After the independence of Brazil, institutes of Roman and canon law, Philippine Ordinances, and several uncodified domestic and foreign laws came into play for regulating private law relations. The true and perfect legislative chaos.
Thus, the preparation of the Brazilian Civil Code was imperative, in order to deal with the applicable rules of private law, regulating the rights and duties of a person from intrauterine life to postmortem.
To this extent, the Federal Constitution of 1824 provided for the organization of a Civil Code, a task assigned to Teixeira de Freitas – only in 1855 – who in 1862 presented the Draft of the Brazilian Civil Code.
Despite being considered inapplicable to the reality of the country, the work inspired other bills, such as the one prepared in 1900 by jurist Clóvis Beviláqua, approved and sent to the National Congress, published in 1916, and mandatory since 1917.
Considering the year of appointment of Teixeira de Freitas, ultimately the first Brazilian Civil Code, the so-called Civil Code of 16, underwent a pregnancy of 62 years.
To replace it, the draft of the current New Brazilian Civil Code, dubbed the Civil Code of 2002, in force since January 2003, which brought improvements and streamlining in line with the Federal Constitution of 1988, was pending in the National Congress for 27 years.
After just over 20 years, the work of a committee of jurists appointed by the Federal Senate began in August 2023, which worked on the drafting of the New Civil Code, presented to its President on April 17.
If the gestation of the first Civil Code lasted 62 years and that of the second 27, we have that the one that may become our third civil code will be gestated and will be born in presumably record time, if we consider that the commission of jurists has already presented the draft in only 8 months.
If the first Civil Code intended to consolidate the then sparse, second-hand and chaotic legislation and if the second intended to update the legal act in keeping with the Federal Constitution, this draft aims to update it, based on established caselaw and the reality of modern society.
For instance, the commission of jurists predicted changes in the way in which animals and families are recognized, brought changes in the rules that provide protection to people in the virtual environment, facilitated the donation of organs after death and set forth norms for assisted human reproduction, surrogate motherhood and marriage.
But what this article aims to address is the proposals that favor the modernization of private relations, by reducing red tape of procedures and enabling dejudicialization of disputes.
For example, family authorization for organ donation will not be required if the deceased has left express permission in this regard, and in the absence of a document, authorization may be given extrajudicially by the spouse, cohabitant or family members in keeping with the order of succession, bringing agility and benefits to those who need transplantation.
The modality of unilateral divorce is also provided for. Even if there is no consensus, either of the couple may request it directly in a notary’s office, which will notify the other, and after 5 days, if the notification is not met, the divorce will be effective, thus giving effect to the peaceful resolution of the doctrine and caselaw, that divorce is a potestative right.
In addition, there is provision for the immediate registration of paternity, from the declaration of the mother, when the father refuses the DNA test, in which case the registered father may request the test so that, if applicable, his name is removed from the birth certificate, which will certainly expedite the procedure for recognition or not of paternity.
Unlike the current Civil Code, the draft intends alteration of property regime to no longer be registered only by judicial means, allowing the regime, whether of marriage or steady union, to be changed in a notary’s office. It is only expected that the draft, the terms of which will still be known, will provide for mechanisms to inhibit the alteration from giving rise to frauds such as, for example, the frustration of third party credit rights.
Lastly, it should be noted that the draft reduces the general limitation period from 10 to 5 years, which may, as subsequently discussed, unify the period of 5 years to quell any and all claims arising from the offense to the right, whatever the possible action to be proposed.
It should be concluded, therefore, that the Civil Code tends to reaffirm is position as the legal framework that has most constantly warranted the legal system with updated, modern regulatory provisions that keep abreast of the reality of society.
The final form of the future bill is thus much awaited, as it promises, by altering more than 1,000 articles, to bring new rules to the daily lives of all of us.
Autor: Maurício Aude • email: mauricio.aude@ernetoborges.com.br • Tel.: + 5565 99981 0853
