Interdiction, an institute of a protective and restrictive nature, is primarily situated within Civil Law and Civil Procedural Law. It consists of a judicial procedure aimed at restricting the capacity to exercise rights for individuals who, due to illness or mental disability, lack the necessary discernment to perform acts of civil life, with the goal of safeguarding their interests and assets.
Concept and Foundation
In the national legal system, interdiction—technically transmuted into the term curatorship (curatela) following the enactment of Law No. 13.146/2015 (Statute of the Person with Disabilities - EPD)—has the legal nature of an extraordinary protective measure. The institute is intended to supply the relative or absolute incapacity to exercise rights, granting a curator the responsibility for the assistance or representation of the subject under curatorship.
Contemporary legal dogmatics rejects the concept of "civil death" once associated with interdiction. Current hermeneutics, under the aegis of the Convention on the Rights of Persons with Disabilities (Decree No. 6.949/2009), advocates that capacity is the rule, with curatorship being an exceptional, proportional, and limited measure, never reaching existential rights such as the right to one's own body, sexuality, marriage, or voting, except in situations of extreme exceptionality that are duly justified.
Historical Origin and Evolution
The institute dates back to Roman Law, specifically under the figure of cura furiosi, aimed at protecting the assets of aristocratic families against the prodigality or insanity of the pater familias. In Brazilian Law, the 1916 Civil Code adopted a strictly incapacitating model, centered on the protection of assets. The 2002 Civil Code maintained the tradition, but the advent of Law No. 13.146/2015 promoted a paradigm of "supported decision-making," elevating the principle of autonomy of will to the level of a central interpretive vector, reducing the list of hypotheses for total interdiction.
Legal Provision and Framework
The legal structure of curatorship is disciplined in the following provisions:
- Civil Code (Law No. 10.406/2002): Articles 1,767 to 1,783-A, which define the subjects eligible for curatorship and the guidelines for the exercise of the charge.
- Civil Procedure Code (Law No. 13.105/2015): Articles 747 to 758, which establish the procedural rite of the interdiction action.
- Federal Constitution: Art. 5, item LXIX, and the principles of human dignity (art. 1, III) and equality, which underpin the protection of persons with disabilities.
Practical Application and Current Jurisprudence
The jurisprudence of the Superior Courts (STJ and STF) has consolidated the understanding that interdiction must be restricted to acts of a patrimonial and business nature. The Superior Court of Justice, in several rulings (e.g., REsp 1.837.287/MG), reinforces that the interdiction sentence should not be generic, but rather set the limits of the curatorship according to the specific need of the person, in compliance with the principle of minimum intervention.
The STF, when judging ADI 4.412, solidified the constitutionality of the protection of persons with disabilities, reaffirming that the EPD did not revoke curatorship, but redefined it as an instrument of inclusion. It is highlighted that interdiction does not remove the capacity of right, only restricts the capacity of fact (exercise), and the magistrate must, whenever possible, prioritize Supported Decision-Making (art. 1.783-A of the CC) as a less burdensome measure.
Related Principles and Doctrinal Divergences
The current doctrinal debate revolves around the tension between the medical model (focused on pathology) and the social model (focused on barriers). Guaranteeist currents maintain that curatorship should be residual, while currents focused on asset protection warn of the risks of financial abuse against incapacitated persons when the institute is underutilized. The principle of best protection and the principle of self-determination are the axes upon which courts balance the need to safeguard assets with respect for the subject's dignity.
Contemporary Relevance
Interdiction, at present, acts as a mechanism to guarantee the social function of property and the maintenance of the individual's dignified subsistence. With population aging and the increase in the diagnosis of degenerative diseases, curatorship has become an indispensable institute for the legal security of contractual relations, requiring the magistrate to act in a multidisciplinary manner, with technical support from psychosocial teams to precisely delimit the extent of the measure.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Law No. 13.105, of March 16, 2015. Civil Procedure Code.
- BRAZIL. Law No. 13.146, of July 6, 2015. Establishes the Brazilian Inclusion Law for Persons with Disabilities (Statute of the Person with Disabilities).
- BRAZIL. Decree No. 6.949, of August 25, 2009. Promulgates the International Convention on the Rights of Persons with Disabilities.
- SUPERIOR COURT OF JUSTICE. REsp 1.837.287/MG, Rapporteur Min. Nancy Andrighi, Third Panel, judged on 12/03/2019.
- SUPREME FEDERAL COURT. ADI 4412/DF, Rapporteur Min. Dias Toffoli, Plenary, judged in 2016.
