Breve historia da lei de propriedade
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Fordham Law ReviewVolume 80 | Issue 3 Article 7
12-1-2011
The Social Function of Property in Brazilian Law
Alexandre dos Santos Cunha
Recommended Citation
Alexandre dos Santos Cunha, The Social Function of Property in Brazilian Law, 80 Fordham L. Rev. 1171 (2011), http://ir.lawnet.fordham.edu/flr/vol80/iss3/7
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THE SOCIAL FUNCTION OF PROPERTY IN BRAZILIAN LAW
Alexandre dos Santos Cunha* INTRODUCTION The idea that rights serve a social function was first introduced into Brazilian legal culture about a century ago. Although the concept is historically linked to the French scholar Léon Duguit, the Brazilian version is distinct and does not share these French origins. Twentieth-century Italian jurists Pietro Cogliolo and Enrico Cimbali, who both exerted overwhelming influence over the so-called “Renovators” of Brazilian Private Law, are primarily responsible for Brazil’s version.1 Unlike Duguit, Cogliolo and Cimbali construed the concept of a social function as a justification for imposing only external limits on the exercise of rights.2 Consequently, Brazilian courts have never considered Duguit’s understanding of the social function of property as a source of internal limitations. The concept of the social function of rights first appeared in the Brazilian Constitution in 1934, and has become considerably stronger since the country adopted a new Civil Code in 2002. This Essay focuses on the 2002 Code’s impact on the way jurists and courts understand the concept, especially with respect to the social function of property. This Essay is divided into four parts. Part I presents a brief history of Brazilian property law, Part II discusses the