Sílvio de Souza Lôbo Júnior
Presentation
This work aims to explore the propter rem obligation, relating doctrine, especially that of Maria Helena Diniz, Sílvio Rodrigues, and Sílvio Venosa. Additionally, three legal precedents were chosen: two from the state of São Paulo's Court of Justice, 34th Chamber of Private Law, and one from the Court of Justice - Section of Private Law of the 26th Chamber of Santa Catarina. The study also incorporates legal doctrine and current Brazilian legislation and jurisprudence.
The primary intention is to define these obligations. This involves understanding the term and developing a concept that aids in identifying such obligations within the Civil Code and their practical application in real-world scenarios and conflicts.
Secondly, the goal is to link this concept to factual reality and its relationship with Real Rights. Thus, the propter rem obligation is viewed as an aspect of real obligations, highlighting the owner's connection to the property and their real link to the thing itself.
Finally, the jurisprudence section demonstrates the position of certain courts and their decisions on this subject.
1. Doctrinal Definitions,
According to Orlando Gomes, propter rem obligations "arise from the debtor's real right over a certain thing"¹. Arnoldo Wald states that obligations "derive from a person's connection to certain assets, over which duties arise from the need to maintain the thing"². Maria Helena Diniz defines it as "a link to a real right, meaning to a certain thing of which the debtor is the owner or possessor"³.
Among other doctrinal scholars, Sílvio Rodrigues describes propter rem by saying, "it binds the holder of a real right, whoever they may be, by virtue of their condition as owner or possessor"⁴. Sílvio Venosa explains it by stating that "it is an obligatory relationship characterized by its link to the thing"⁵.
Guided by these scholars, it is possible to define propter rem obligations as obligations that follow the real object (thing), such as condominium fees for a property or property taxes (IPTU).
Another definition is that an obligation "is a transitory pecuniary legal relationship, uniting two (or more) persons, where one (the debtor) must perform an act for the other (the creditor)"⁶. To complement this, we refer to other concepts such as "an obligation is a transitory legal relationship, which compels us to give, do, or not do something, generally economically assessable, for the benefit of someone who, by our act or that of someone legally related to us, or by law, has acquired the right to demand this action or omission from us"⁷; "an obligation is a legal relationship, of a transitory nature, established between debtor and creditor, and whose object consists of an economic personal performance, positive or negative, owed by the former to the latter, guaranteeing its fulfillment through their assets (BARROS, 97)"⁷.
[7].
1.1 Termination of the Obligation
Maria Helena Diniz clarifies that "the debtor can be exonerated by abandoning the real right, renouncing the right over the thing"⁸. Sílvio Rodrigues states that "the debtor is freed from the obligation by abandoning the real right"⁹.
Sílvio Venosa relates the extinction of the obligation to its transfer: "the birth, transmission, and extinction of a propter rem obligation follow the real right, with a link of accessory"¹⁰.
Based on these doctrinal points, it can be stated that a propter rem obligation, by following the thing, only ceases for the obligor in the same way that the transmission of the thing occurs, i.e., by its tradition or by the abandonment of the thing.
1.2 Transmission of the Obligation
Regarding transmission, Maria Helena Diniz states that it is "transmissible through legal transactions, in which case the obligation will fall upon the acquirer"¹¹. Sílvio Rodrigues explains that "the obligation is transmitted to the singular successors of the debtor."
Sílvio Venosa also states that "the so-called real obligation forms, in a way, part of the content of the real right, and its effectiveness against the singular successors of the debtor provides stability to the content of the right"¹².
2. Legal Application
2.1. Cases of Application
The following are propter rem obligations:
- The obligation of a co-owner to contribute to the conservation or division of the common property;
- The obligation of neighboring property owners to contribute to the expenses of constructing dividing fences;
- The obligation of the acquirer of a mortgaged asset to pay off the debt encumbering it if they wish to release it;
- The obligation of the owner of properties incorporated into the national historical and artistic heritage not to destroy or carry out works that modify their appearance;
- The obligation of owners of bordering properties to contribute to the expenses of demarcation and renewal of destroyed boundary markers;
- The negative obligation in the case of servitude, where the owner of the servient estate cannot impede the legitimate use of the servitude;
- The obligation of the owner to provide a guarantee regarding imminent damage to a neighboring property;
- Obligations related to the right of neighborhood;
3. Jurisprudence
3.1 First Jurisprudence
JUDICIAL POWER
SANTA CATARINA
COURT OF JUSTICE - SECTION OF PRIVATE LAW
26th CHAMBER
INSTRUMENT APPEAL NO. 1.221.335-0/5
"The propter rem obligation is one in which the debtor, by being the holder of a right over a thing, is subject to a certain performance that, consequently, did not arise from the express or tacit manifestation of their will.
What makes them a debtor is the circumstance of holding the real right, and this is so true that they are released from the obligation if they renounce that right.
Therefore, the condominium debt is linked to the unit that generated it. The property owner will be liable for the debt, even if the ownership changes and the debt predates the change.
In this context, consider the jurisprudence of the E. Superior Court of Justice:
"Auction - Real Estate - Condominium Fees - Responsibility - Acquirer. Procedural Civil and Civil - Condominium - Condominium Fees - Passive Legitimacy - Auction - Appeal not heard. 1 - In line with the orientation adopted by this Court, the acquirer in an auction is responsible for condominium charges incident on the auctioned property, even if they precede the auction, given the propter rem nature of condominium quotas. 2 - Appeal not heard." (Resp. n° 572.767-0-SC, Rel. Min. Jorge Scartezzini, j. 19.04.2005, p. 16.05.2005)
3.1 Second Jurisprudence
JUDICIAL POWER
SÃO PAULO
COURT OF JUSTICE
34th CHAMBER OF PRIVATE LAW
INSTRUMENT APPEAL NO. 1.219.012.0072
SANTOS - 8th CIVIL COURT
APPELLANT: NICOLINO BOZZELLA
APPELLEE: CONDOMINIUM EDIFÍCIO VAN GOGH
CONDOMINIUM EXPENSES - COLLECTION - ENFORCEMENT
CONDOMINIUM EXPENSES - ENFORCEMENT - PROPTER REM OBLIGATION - ATTACHMENT OF CONDOMINIUM UNIT - POSSIBILITY. As it concerns a propter rem obligation, the attachment of the condominium unit that incurred the debt is possible, as it is covered by the exception established in art. 3, IV, of Law 8.009/90. APPEAL UNFAVORABLE.
VOTE NO. 6789
1. This is an instrument appeal filed by Nicolino Bozzella, seeking reform of the respectable decision, rendered in a condominium expense collection action, in the enforcement phase, which denied the substitution of the attachment of the debtor unit for a less burdensome property to the debtor.
Dissatisfied, the appellant argues for the need to substitute the attachment for a less burdensome property, as well as its exemption from attachment, given that it is a family home.
The appeal was processed without a suspensive effect (p. 37). The appellee presented a response (pp. 40/93), requesting the appellant's conviction for bad-faith litigation.
This is the essential summary.
2. This is an action for the collection of condominium expenses, filed by the condominium against the co-owner, asserting that the defendant failed to honor the payment of condominium expenses.
The responsibility for condominium debts is propter rem, as it is directly and fully guaranteed by the asset itself that generated them. [...]
3.3 Third Jurisprudence
Superior Court of Justice
AGRg in SPECIAL APPEAL NO. 657.386 - SP (2004/0061230-1)
RELATOR: MINISTER LUIS FELIPE SALOMÃO
APPELLANT: ALCIDES PANUCI
ATTORNEY: KAOR TIBA
APPELLEE: CONDOMINIO EDIFICIO MANSÃO DO BARÃO DE PORTO ALEGRE
ATTORNEY: CINTHYA MACEDO PIMENTEL AND OTHERS
SUMMARY
REGIMENTAL APPEAL IN SPECIAL APPEAL. COLLECTION OF CONDOMINIUM QUOTAS. PROPTER REM OBLIGATION. REGIMENTAL APPEAL UNFAVORABLE.
The appealed decision regularly applied the jurisprudence of this Court, stating that the collection of condominium quotas, being a propter rem obligation, can be filed against both the promissory seller and the prospective buyer.
Regimental appeal unfavorable.
Final Considerations
After a humble yet enriching research, it is possible to articulate in one's own words some pertinent considerations on Propter Rem Obligations. Thus, they can be defined as obligations that follow the thing; perpetual obligations that pass with the tradition from the former owner to the new one, obliging them to satisfy such obligation.
A propter rem obligation can only be extinguished for an owner through the tradition of the thing to a new owner, when the latter assumes the obligation. Or through abandonment, where the obligation is relinquished simultaneously with the relinquishment of the status of possession over the thing.
The abandonment that extinguishes a propter rem obligation is the same as that which extinguishes possession; therefore, there is no question of suspension but of definitive loss of the right to the thing.
It is not just taxes that constitute a propter rem obligation; this is merely an example. Any obligation that follows the thing, such as a land servitude, or any other that follows the thing and from which the rich doctrine on the subject originates.
Ultimately, the propter rem obligation is considered inherent to responsibility towards the community, whether for land granted for necessary passage servitude, or for the condominium necessary for the maintenance and conservation of the property. There can be no separation of this obligation from the thing without implying deterioration or harm to the collective.
Bibliographical References
BARROS MONTEIRO, Washington de. Curso de Direito Civil. Vol.4.25th Ed. 1991 Editora Saraiva, São Paulo.
DINIZ, Maria Helena. Curso de Direito Civil Brasileiro. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11. GOMES, Orlando. Obrigações. 11th Edition. Ed. Forense. p. 21.
LOPES, Lívia Cardoso; et al. Das obrigações "propter rem" em face do novo Código Civil brasileiro. UGC, 2003. Available at: <http://jus2.uol.com.br/doutrina/ texto.asp?id=4798>, Accessed on Sep 25, 09.
RODRIGUES, Sílvio. Direito Civil – Vol. 2 – Parte Geral das Obrigações. 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Teoria Geral das Obrigações e Teoria Geral dos Contratos.3rd ed. São Paulo: Atlas. 2003.
SUPERIOR TRIBUNAL DE JUSTIÇA; AgRg no RECURSO ESPECIAL Nº 657.386 - SP (2004/0061230-1); RELATOR: MINISTER LUIS FELIPE SALOMÃO. Available at http://www.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-1000000190381-4-000-1-tjmg. Accessed on Sep 24, 09.
COURT OF JUSTICE; SECTION OF PRIVATE LAW; 26th CHAMBER - INSTRUMENT APPEAL NO. 1.221.335-0/5. Available at http://www.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-00000019 0381-4-df00-1-tjmg. Accessed on Sep 24, 09.
COURT OF JUSTICE; JUDICIAL POWER - SÃO PAULO - 34th CHAMBER OF PRIVATE LAW; VOTE NO. 6789; Available at http://www w.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-00000019 038133-4-df00-1-tjmg. Accessed on Sep 25, 09.
WALD, Arnoldo. Obrigações e Contratos. 12th ed. Ed. Revista dos Tribunais. p. 60.
[1]
GOMES, Orlando. Obrigações. 11th Edition. Ed. Forense. P. 21.
WALD, Arnoldo. Obrigações e Contratos. 12th Edition. Ed. Revista dos Tribunais. P. 60.
DINIZ, Maria Helena. Curso de Direito Civil Brasileiro. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11.
RODRIGUES, Sílvio. Direito Civil – Vol. 2 – Parte Geral das Obrigações. 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Teoria Geral das Obrigações e Teoria Geral dos Contratos.3rd ed. São Paulo: Atlas. 2003.
VENOSA, Sílvio. Ibidem
DE BARROS MONTEIRO, Washington (1997, v. 4:8).
DINIZ, Maria Helena Ibidem , P. 11.
RODRIGUES, Sílvio. Ibidem , 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
DINIZ, Maria HelenaIbidem , P. 11.
VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
Sílvio de Souza Lôbo Júnior
Presentation
This work aims to explore the propter rem obligation, relating doctrine, especially that of Maria Helena Diniz, Sílvio Rodrigues, and Sílvio Venosa. Additionally, three legal precedents were chosen: two from the state of São Paulo's Court of Justice, 34th Chamber of Private Law, and one from the Court of Justice - Section of Private Law of the 26th Chamber of Santa Catarina. The study also incorporates legal doctrine and current Brazilian legislation and jurisprudence.
The primary intention is to define these obligations. This involves understanding the term and developing a concept that aids in identifying such obligations within the Civil Code and their practical application in real-world scenarios and conflicts.
Secondly, the goal is to link this concept to factual reality and its relationship with Real Rights. Thus, the propter rem obligation is viewed as an aspect of real obligations, highlighting the owner's connection to the property and their real link to the thing itself.
Finally, the jurisprudence section demonstrates the position of certain courts and their decisions on this subject.
1. Doctrinal Definitions,
According to Orlando Gomes, propter rem obligations "arise from the debtor's real right over a certain thing"¹. Arnoldo Wald states that obligations "derive from a person's connection to certain assets, over which duties arise from the need to maintain the thing"². Maria Helena Diniz defines it as "a link to a real right, meaning to a certain thing of which the debtor is the owner or possessor"³.
Among other doctrinal scholars, Sílvio Rodrigues describes propter rem by saying, "it binds the holder of a real right, whoever they may be, by virtue of their condition as owner or possessor"⁴. Sílvio Venosa explains it by stating that "it is an obligatory relationship characterized by its link to the thing"⁵.
Guided by these scholars, it is possible to define propter rem obligations as obligations that follow the real object (thing), such as condominium fees for a property or property taxes (IPTU).
Another definition is that an obligation "is a transitory pecuniary legal relationship, uniting two (or more) persons, where one (the debtor) must perform an act for the other (the creditor)"⁶. To complement this, we refer to other concepts such as "an obligation is a transitory legal relationship, which compels us to give, do, or not do something, generally economically assessable, for the benefit of someone who, by our act or that of someone legally related to us, or by law, has acquired the right to demand this action or omission from us"⁷; "an obligation is a legal relationship, of a transitory nature, established between debtor and creditor, and whose object consists of an economic personal performance, positive or negative, owed by the former to the latter, guaranteeing its fulfillment through their assets (BARROS, 97)"⁷.
[7].
1.1 Termination of the Obligation
Maria Helena Diniz clarifies that "the debtor can be exonerated by abandoning the real right, renouncing the right over the thing"⁸. Sílvio Rodrigues states that "the debtor is freed from the obligation by abandoning the real right"⁹.
Sílvio Venosa relates the extinction of the obligation to its transfer: "the birth, transmission, and extinction of a propter rem obligation follow the real right, with a link of accessory"¹⁰.
Based on these doctrinal points, it can be stated that a propter rem obligation, by following the thing, only ceases for the obligor in the same way that the transmission of the thing occurs, i.e., by its tradition or by the abandonment of the thing.
1.2 Transmission of the Obligation
Regarding transmission, Maria Helena Diniz states that it is "transmissible through legal transactions, in which case the obligation will fall upon the acquirer"¹¹. Sílvio Rodrigues explains that "the obligation is transmitted to the singular successors of the debtor."
Sílvio Venosa also states that "the so-called real obligation forms, in a way, part of the content of the real right, and its effectiveness against the singular successors of the debtor provides stability to the content of the right"¹².
2. Legal Application
2.1. Cases of Application
The following are propter rem obligations:
- The obligation of a co-owner to contribute to the conservation or division of the common property;
- The obligation of neighboring property owners to contribute to the expenses of constructing dividing fences;
- The obligation of the acquirer of a mortgaged asset to pay off the debt encumbering it if they wish to release it;
- The obligation of the owner of properties incorporated into the national historical and artistic heritage not to destroy or carry out works that modify their appearance;
- The obligation of owners of bordering properties to contribute to the expenses of demarcation and renewal of destroyed boundary markers;
- The negative obligation in the case of servitude, where the owner of the servient estate cannot impede the legitimate use of the servitude;
- The obligation of the owner to provide a guarantee regarding imminent damage to a neighboring property;
- Obligations related to the right of neighborhood;
3. Jurisprudence
3.1 First Jurisprudence
JUDICIAL POWER
SANTA CATARINA
COURT OF JUSTICE - SECTION OF PRIVATE LAW
26th CHAMBER
INSTRUMENT APPEAL NO. 1.221.335-0/5
"The propter rem obligation is one in which the debtor, by being the holder of a right over a thing, is subject to a certain performance that, consequently, did not arise from the express or tacit manifestation of their will.
What makes them a debtor is the circumstance of holding the real right, and this is so true that they are released from the obligation if they renounce that right.
Therefore, the condominium debt is linked to the unit that generated it. The property owner will be liable for the debt, even if the ownership changes and the debt predates the change.
In this context, consider the jurisprudence of the E. Superior Court of Justice:
"Auction - Real Estate - Condominium Fees - Responsibility - Acquirer. Procedural Civil and Civil - Condominium - Condominium Fees - Passive Legitimacy - Auction - Appeal not heard. 1 - In line with the orientation adopted by this Court, the acquirer in an auction is responsible for condominium charges incident on the auctioned property, even if they precede the auction, given the propter rem nature of condominium quotas. 2 - Appeal not heard." (Resp. n° 572.767-0-SC, Rel. Min. Jorge Scartezzini, j. 19.04.2005, p. 16.05.2005)
3.1 Second Jurisprudence
JUDICIAL POWER
SÃO PAULO
COURT OF JUSTICE
34th CHAMBER OF PRIVATE LAW
INSTRUMENT APPEAL NO. 1.219.012.0072
SANTOS - 8th CIVIL COURT
APPELLANT: NICOLINO BOZZELLA
APPELLEE: CONDOMINIUM EDIFÍCIO VAN GOGH
CONDOMINIUM EXPENSES - COLLECTION - ENFORCEMENT
CONDOMINIUM EXPENSES - ENFORCEMENT - PROPTER REM OBLIGATION - ATTACHMENT OF CONDOMINIUM UNIT - POSSIBILITY. As it concerns a propter rem obligation, the attachment of the condominium unit that incurred the debt is possible, as it is covered by the exception established in art. 3, IV, of Law 8.009/90. APPEAL UNFAVORABLE.
VOTE NO. 6789
1. This is an instrument appeal filed by Nicolino Bozzella, seeking reform of the respectable decision, rendered in a condominium expense collection action, in the enforcement phase, which denied the substitution of the attachment of the debtor unit for a less burdensome property to the debtor.
Dissatisfied, the appellant argues for the need to substitute the attachment for a less burdensome property, as well as its exemption from attachment, given that it is a family home.
The appeal was processed without a suspensive effect (p. 37). The appellee presented a response (pp. 40/93), requesting the appellant's conviction for bad-faith litigation.
This is the essential summary.
2. This is an action for the collection of condominium expenses, filed by the condominium against the co-owner, asserting that the defendant failed to honor the payment of condominium expenses.
The responsibility for condominium debts is propter rem, as it is directly and fully guaranteed by the asset itself that generated them. [...]
3.3 Third Jurisprudence
Superior Court of Justice
AGRg in SPECIAL APPEAL NO. 657.386 - SP (2004/0061230-1)
RELATOR: MINISTER LUIS FELIPE SALOMÃO
APPELLANT: ALCIDES PANUCI
ATTORNEY: KAOR TIBA
APPELLEE: CONDOMINIO EDIFICIO MANSÃO DO BARÃO DE PORTO ALEGRE
ATTORNEY: CINTHYA MACEDO PIMENTEL E OUTRO(S)
SUMMARY
REGIMENTAL APPEAL IN SPECIAL APPEAL. COLLECTION OF CONDOMINIUM QUOTAS. PROPTER REM OBLIGATION. REGIMENTAL APPEAL UNFAVORABLE.
The appealed decision regularly applied the jurisprudence of this Court, stating that the collection of condominium quotas, being a propter rem obligation, can be filed against both the promissory seller and the prospective buyer.
Regimental appeal unfavorable.
Final Considerations
After a humble yet enriching research, it is possible to articulate in one's own words some pertinent considerations on Propter Rem Obligations. Thus, they can be defined as obligations that follow the thing; perpetual obligations that pass with the tradition from the former owner to the new one, obliging them to satisfy such obligation.
A propter rem obligation can only be extinguished for an owner through the tradition of the thing to a new owner, when the latter assumes the obligation. Or through abandonment, where the obligation is relinquished simultaneously with the relinquishment of the status of possession over the thing.
The abandonment that extinguishes a propter rem obligation is the same as that which extinguishes possession; therefore, there is no question of suspension but of definitive loss of the right to the thing.
It is not just taxes that constitute a propter rem obligation; this is merely an example. Any obligation that follows the thing, such as a land servitude, or any other that follows the thing and from which the rich doctrine on the subject originates.
Ultimately, the propter rem obligation is considered inherent to responsibility towards the community, whether for land granted for necessary passage servitude, or for the condominium necessary for the maintenance and conservation of the property. There can be no separation of this obligation from the thing without implying deterioration or harm to the collective.
Bibliographical References
BARROS MONTEIRO, Washington de. Curso de Direito Civil. Vol.4.25th Ed. 1991 Editora Saraiva, São Paulo.
DINIZ, Maria Helena. Curso de Direito Civil Brasileiro. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11. GOMES, Orlando. Obrigações. 11th Edition. Ed. Forense. p. 21.
LOPES, Lívia Cardoso; et al. Das obrigações "propter rem" em face do novo Código Civil brasileiro. UGC, 2003. Available at: <http://jus2.uol.com.br/doutrina/ texto.asp?id=4798>, Accessed on Sep 25, 09.
RODRIGUES, Sílvio. Direito Civil – Vol. 2 – Parte Geral das Obrigações. 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Teoria Geral das Obrigações e Teoria Geral dos Contratos.3rd ed. São Paulo: Atlas. 2003.
SUPERIOR TRIBUNAL DE JUSTIÇA; AgRg no RECURSO ESPECIAL Nº 657.386 - SP (2004/0061230-1); RELATOR: MINISTER LUIS FELIPE SALOMÃO. Available at http://www.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-1000000190381-4-000-1-tjmg. Accessed on Sep 24, 09.
COURT OF JUSTICE; SECTION OF PRIVATE LAW; 26th CHAMBER - INSTRUMENT APPEAL NO. 1.221.335-0/5. Available at http://www.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-00000019 0381-4-df00-1-tjmg. Accessed on Sep 24, 09.
COURT OF JUSTICE; JUDICIAL POWER - SÃO PAULO - 34th CHAMBER OF PRIVATE LAW; VOTE NO. 6789; Available at http://www w.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-00000019 038133-4-df00-1-tjmg. Accessed on Sep 25, 09.
WALD, Arnoldo. Obrigações e Contratos. 12th ed. Ed. Revista dos Tribunais. p. 60.
[1]
GOMES, Orlando. Obrigações. 11th Edition. Ed. Forense. P. 21.
WALD, Arnoldo. Obrigações e Contratos. 12th Edition. Ed. Revista dos Tribunais. P. 60.
DINIZ, Maria Helena. Curso de Direito Civil Brasileiro. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11.
RODRIGUES, Sílvio. Direito Civil – Vol. 2 – Parte Geral das Obrigações. 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Teoria Geral das Obrigações e Teoria Geral dos Contratos.3rd ed. São Paulo: Atlas. 2003.
VENOSA, Sílvio. Ibidem
DE BARROS MONTEIRO, Washington (1997, v. 4:8).
DINIZ, Maria HelenaIbidem , P. 11.
RODRIGUES, Sílvio. Ibidem , 30th ed. São Paulo: Saraiva, 2002
VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
DINIZ, Maria HelenaIbidem , P. 11.
VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
