A RESPONSABILIZAÇÃO POR ABUSO DE DIREITO DE EXERCÍCIO DA PROPRIEDADE: A INTERPRETAÇÃO CONSTITUCIONAL DO CÓDIGO CIVIL

Abstract

This article intends to demonstrate the objective bias of liability for abuse of rights contained in the second paragraph of Article 1,228 of the Civil Code, despite the dissonant interpretation that it is a case of subjective liability. The hypothesis, based on the post-constitutional bias, comes from the interpretation of the social function in its full application to prevent acts that make its exercise unfeasible. In this sense, the research was divided into two central axes: the first is capable of dealing with the social function of contractual good faith and its theses; the next addresses general civil liability; and, finally, that resulting from the abuse of the exercise of the right to property and its social function. We used a bibliographic review using the deductive method based on bibliographic and documentary techniques, which were also descriptive here, interpreted using a qualitative analysis. The conclusion reached is that the most accurate interpretation of the provision in question should be one that indicates objective liability as a way of honoring the contractual social function and, above all, property.