A PROTEÇÃO DO DONATÁRIO X A VONTADE DO DOADOR: A JUSTA CAUSA COMO FUNDO DE VALIDADE PARA O CANCELAMENTO DE CLÁUSULAS RESTRITIVAS EM DOAÇÃO

Abstract

The objective of this study is to analyze the application of the concept of just cause in the revocation of inalienability, unseizability and incommunicability in donations. It also examines the limits, implications and criteria used by doctrine and jurisprudence for their characterization. To this end, the research is structured around three main axes, starting from the following gap: To what extent is the existence of a just cause sufficient for the revocation of restrictive clauses in donations and what are the criteria used by doctrine and jurisprudence to characterize them? Initially, the concepts of inalienability, incommunicability and unseizability are addressed and how these clauses restrict the donee's property rights. Later, the historical evolution and the concept of just cause will be explored, and its requirement for donations will be discussed. Based on the discussion initiated in the previous sections, the possibility of revoking restrictive clauses will be examined, with an emphasis on the jurisprudential analysis of the topic. Considering this, qualitative methodology and the deductive method were used, along with the technique of bibliographical research through consultation of legislation, doctrine, articles and jurisprudence. As a result, the work demonstrated that, although the Civil Code requires just cause for the imposition of these restrictions in wills, doctrine and jurisprudence differ regarding their application in donations. It was also concluded that, considering the protective nature of restrictive clauses, the application of just cause in the donation institute can be relativized, allowing revocation when its maintenance is no longer justified.