without precariousness

1. Definition, Concept, and Legal Nature

Precariousness, in legal parlance, designates the condition of that which is transient, revocable, or maintained by mere liberality and abuse of trust. Consequently, the expression "without precariousness" denotes a legal situation of stability, permanence, or full possession, stripped of the defect that prevents the production of certain acquisitive or protective effects.

In the scope of Property Law, precarious possession is that which originates from an abuse of trust on the part of one who received the thing with the duty to return it and, once the term has ended or the return has been requested, refuses to do so. Therefore, the legal nature of the "absence of precariousness" is that of a prerequisite of effectiveness for institutes such as usucapio, since precarious possession does not heal with the passage of time (Art. 1.208, Civil Code).

2. Historical Origin and Evolution

The origin of the concept dates back to Roman Law, specifically to the institute of precarium. It was an innominate contract by which one party (the grantor) delivered to another (the precarious holder) the use of a thing, revocable at any time by the former. At that time, the precarious holder did not enjoy possessory protection against the owner.

With the evolution to modern Civil Law and the influence of the Napoleonic Code, precariousness began to be classified as a relative defect of possession (alongside violence and clandestinity). In Brazil, the 1916 Civil Code already established the distinction between fair and unfair possession, maintained and improved by the 2002 Civil Code, which reinforced the social function of property and Ihering's objective theory, although it maintains remnants of Savigny's subjective theory regarding animus domini in the face of precariousness.

3. Legal Provision and Normative Framework

The strict legal foundation is primarily found in the following statutes:

• Civil Code (Law No. 10.406/2002):
  • Art. 1.200: Defines fair possession as that which is not violent, clandestine, or precarious.
  • Art. 1.203: Establishes the presumption that possession maintains the same character with which it was acquired, unless proven otherwise.
  • Art. 1.208: States that acts of mere permission or tolerance do not induce possession.
• 1988 Federal Constitution:
  • Art. 5, XXII and XXIII: Right to property and its social function, which guide the interpretation regarding the definitiveness of legal situations.
  • Art. 37: In Administrative Law, it informs the principles of legality and impersonality, contrasting with the precarious nature of administrative authorizations.

4. Practical Application and Jurisprudential Understanding

The jurisprudence of the Superior Courts (STJ and STF) is peaceful in the sense that precarious possession does not generate acquisitive rights, regardless of the time elapsed, unless there is the so-called interversion of possession (interversio possessionis).

In the Superior Court of Justice (STJ): The consolidated understanding, also reflected in Statement 237 of the III Civil Law Conference, admits that precarious possession can be transmuted into full possession if there is an external fact that alters the cause of possession (causa possessionis), unequivocally demonstrating the possessor's opposition to the owner. Without this alteration, the possession remains precarious and insusceptible to usucapio.

In the Supreme Federal Court (STF): The discussion on precariousness is frequent in Administrative Law, especially regarding the occupation of public assets. Súmula 340 of the STF prohibits the usucapio of public assets, reinforcing that any occupation by a private individual is inherently precarious (mere detention), not generating the right to retention or compensation for improvements without specific legal provision.

In the Superior Labor Court (TST): Precariousness is debated from the perspective of job stability and fixed-term contracts. The absence of precariousness (stability) is the general rule resulting from the Principle of Continuity of the Employment Relationship, with precariousness being restricted to exceptional and exhaustive hypotheses of the CLT (Consolidation of Labor Laws).

5. Related Principles and Doctrinal Divergences

The study of the absence of precariousness interacts directly with the following principles:

• Principle of Objective Good Faith: Precariousness is configured as a violation of the legitimate trust placed by the indirect possessor in the direct possessor.
• Principle of Legal Certainty: Aims to transform prolonged factual situations into legal situations, combating precariousness ad aeternum.
• Theory of Interversion of Possession: There is doctrinal divergence regarding the exact moment when possession ceases to be precarious. The majority view requires an overt act of denial of the owner's right, while a minority view suggests that prolonged abandonment by the owner could, by itself, mitigate the defect of precariousness in favor of the social function.

6. Contemporary Relevance and Practical Impacts

In contemporary times, the discussion on "non-precariousness" has gained new contours with the digitalization of the economy and new forms of property. In Real Estate Law, land regularization (REURB - Law No. 13.465/2017) seeks to convert precarious detentions into legitimate property titles, aiming at social pacification.

In modern Administrative Law, the concept of "attenuated precariousness" emerges in concessions for the use of public property for housing purposes, where the State, although maintaining ownership, cannot revoke the act in a discretionary manner without guaranteeing the fundamental right to housing, bringing administrative precariousness closer to civil possessory stability.