Sílvio de Souza Lôbo Júnior
Presentation
This work seeks to illuminate the propter rem obligation, relating doctrine, especially Maria Helena Diniz, Sílvio Rodrigues, and Sílvio Venosa, in addition to selecting three pieces of jurisprudence, two from the state of São Paulo, 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, as well as current Brazilian legislation and jurisprudence.
The first objective is to define these obligations. To understand the term and elaborate a concept that helps in finding such obligations in the Civil Code and their application in real cases, amidst everyday life and conflict.
Secondly, to attribute this concept to real facts, its relationship with Real Rights, thus the propter rem obligation as an aspect of the real obligation, and its relationship between the owner and the property, their real link to the thing.
Finally, jurisprudence demonstrating the position of some courts with their decisions on this topic.
1. Doctrinal Definitions,
According to Orlando Gomes, propter rem obligations "arise from a debtor's real right over a certain thing"[1]. Arnoldo Wald states that obligations "derive from someone's link to certain assets, over which duties arise from the need to maintain the thing"[2]. Meanwhile, Maria Helena Diniz explains that it is the "link to a real right, that is, to a certain thing of which the debtor is the owner or possessor"[3].
Among other legal scholars, in simple terms, Sílvio Rodrigues describes propter rem by saying that "it binds the holder of a real right, whoever they may be, by virtue of their status as owner or possessor[4]". Sílvio Venosa explains it by stating that "it is an obligational relationship characterized by its link to the thing"[5].
Illuminated by these legal 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 tax (IPTU).
Another definition is that an obligation "is a temporary pecuniary legal relationship, uniting two (or more) persons, where one (the debtor) must perform a prestation to the other (the creditor)[6]." And to complete it, we refer to other concepts such as "an obligation is a temporary legal relationship, which constrains us to give, do, or not do something, generally economically appreciable, for the benefit of someone who, by our act or by an act of someone legally related to us, or by law, has acquired the right to demand this action or omission from us (3)"; "an obligation is a legal relationship, of a temporary nature, established between debtor and creditor, and whose object consists of an economic personal prestation, positive or negative, owed by the former to the latter, guaranteeing its fulfillment through their assets (BARROS, 97)
[7]".
1.1 Termination of the Obligation
Maria Helena Diniz clarifies that the "possibility of the debtor being exonerated by abandoning the real right, renouncing the right to 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 statements, it can be affirmed that the propter rem obligation, by following the thing, only ceases for the obligated party in the same way that the transfer of the thing occurs, that is, by its tradition, or by the abandonment of the thing.
1.2 Transmission of the Obligation
Regarding transmission, Maria Helena Diniz states that "transmissibility 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, in a way, forms 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 settle the debt that encumbers it if they wish to free it; - The obligation of the owner of properties incorporated into the national historical and artistic heritage not to destroy or carry out works that alter their appearance; - The obligation of owners of adjoining properties to contribute to the expenses of demarcation and renewal of destroyed boundary markers; - The negative obligation in the case of easements, where the owner of the servient tenement cannot impede the legitimate use of the easement; - The obligation of the owner to provide collateral for imminent damage to a neighboring property; - Obligations related to neighborhood rights;
3. Jurisprudence
3.1 First Jurisprudence
JUDICIAL POWER
SANTA CATARINA
COURT OF JUSTICE - SECTION OF PRIVATE LAW
26th CHAMBER
AGRAVO DE INSTRUMENTO N° 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 prestation that, consequently, did not arise from an 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 this right.
Therefore, the condominium debt is linked to the unit that generated it. The owner of the property will be responsible for the debt, even if there is a change in ownership and the debt precedes it.
In this context, see the jurisprudence of the E. Superior Court of Justice:
"Sheriff's Sale - Property - Condominium Fees - Responsibility - Acquirer. Procedural Civil and Civil - Condominium - Condominium Fees - Passive Legitimacy - Sheriff's Sale – Appeal not heard. 1 - In line with the orientation adopted by this Court, the acquirer in a sheriff's sale is responsible for condominium charges incident on the property sold, even if they precede the sale, given the propter rem nature of condominium quotas. 2 - Appeal not heard." (Resp. n° 572.767-0-SC, Rei. Min. Jorge Scartezzini, j. 04/19/2005, p. 05/16/2005)
3.1 Second Jurisprudence
JUDICIAL POWER
SÃO PAULO
COURT OF JUSTICE
34th CHAMBER OF PRIVATE LAW
AGRAVO DE INSTRUMENTO N° 1.219.012.0072
SANTOS - 8th CIVIL COURT
APPELLANT: NICOLINO BOZZELLA
APPELLEE: CONDOMÍNIO EDIFÍCIO VAN GOGH
CONDOMINIUM EXPENSES - COLLECTION - EXECUTION
CONDOMINIUM EXPENSES - EXECUTION - PROPTER REM OBLIGATION - ATTACHMENT OF THE CONDOMINIUM UNIT - POSSIBILITY. As it is a propter rem obligation, it is possible to attach the condominium unit itself that caused the debt, as it is covered by the exception established in art. 3, IV, of Law 8.009/90. APPEAL DENIED.
VOTE N° 6789
1. This is an interlocutory appeal filed by Nicolino Bozzella, seeking reform of the respected decision, rendered in an action for collection of condominium expenses, in the execution phase, which denied the substitution of the attachment of the indebted unit for a less burdensome property for the debtor.
Dissatisfied, the appellant argues for the need to substitute the attachment for a less burdensome property, as well as its non-attachability, given that it is a family home.
The appeal was processed without a suspensive effect (p. 37). The appellee filed a response (pp. 40/93), requesting the conviction of the appellant for bad-faith litigation.
This is the essential summary.
2. This is an action for collection of condominium expenses, filed by the condominium against the co-owner, arguing that the defendant failed to honor the payment of condominium expenses.
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 no RECURSO ESPECIAL Nº 657.386 - SP (2004/0061230-1)
RAPPORTEUR: MINISTER LUIS FELIPE SALOMÃO
APPELLANT: ALCIDES PANUCI
LAWYER: KAOR TIBA
APPELLEE: CONDOMÍNIO EDIFICIO MANSÃO DO BARÃO DE PORTO ALEGRE
LAWYER: CINTHYA MACEDO PIMENTEL AND ANOTHER(S)
SUMMARY
AGRAVO REGIMENTAL NO RECURSO ESPECIAL. COLLECTION OF CONDOMINIUM FEES. PROPTER REM OBLIGATION. AGRAVO REGIMENTAL DENIED.
The appellate decision regularly applied the jurisprudence of this Court, stating that the collection of condominium fees, being a propter rem obligation, can be filed against both the promise-seller and the promise-buyer.
Agravo regimental denied.
Final Considerations
After a humble but enriching research, it is possible to put into my own words some pertinent considerations regarding Propter Rem Obligations, thus defining it as the obligation that follows the thing; the perpetual obligation that passes through the tradition from the former owner to the new one, obliging them to satisfy such obligation.
The Propter Rem Obligation can only be extinguished for an owner with the tradition of the thing to a new owner, when the latter assumes the obligation. Or by abandonment, where the obligation is relinquished simultaneously with the abandonment of the status of possession over the thing.
The abandonment that extinguishes the propter rem obligation is the same that extinguishes possession, therefore, there is nothing to be said about suspension but a definitive loss of the right to the thing.
It is not only taxes that are propter rem obligations; this is just one example. Any obligation that follows the thing, such as the easement of a plot of land, or any other that follows the thing, thus giving rise to a rich doctrine on the subject.
In conclusion, the propter rem obligation is considered natural to the responsibility towards the community, whether for the land marked by the necessary easement for passage, or for the condominium necessary for the maintenance and conservation of the thing. 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. Course of Civil Law. Vol.4.25th Ed. 1991 Saraiva Publisher, São Paulo.
DINIZ, Maria Helena. Course of Brazilian Civil Law. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11. GOMES, Orlando. Obligations. 11th Edition. Ed. Forense. p. 21.
LOPES, Lívia Cardoso; et al. On "propter rem" obligations in the face of the new Brazilian Civil Code. UGC, 2003. Available at: <http://jus2.uol.com.br/doutrina/ texto.asp?id=4798>, Accessed on Sep 25, 09.
RODRIGUES, Sílvio. Civil Law – Vol. 2 – General Part of Obligations. 30th ed. São Paulo: Saraiva, 2002
SALVO VENOSA, Sílvio. General Theory of Obligations and General Theory of Contracts. 3rd ed. São Paulo: Atlas. 2003.
SUPERIOR COURT OF JUSTICE; AgRg no RECURSO ESPECIAL Nº 657.386 - SP (2004/0061230-1); RAPORTER: 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 - AGRAVO DE INSTRUMENTO N° 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 N° 6789; Available at http://ww w.jusbrasil.com.br/jurisprudencia/4448035/1903814-mg-00000019 038133-4-df00-1-tjmg. Accessed on Sep 25, 09.
WALD, Arnoldo. Obligations and Contracts. 12th ed. Ed. Revista dos Tribunais. p. 60.
[1]
GOMES, Orlando. Obligations. 11th Edition. Ed. Forense. P. 21.
WALD, Arnoldo. Obligations and Contracts. 12th Edition. Ed. Revista dos Tribunais. P. 60.
DINIZ, Maria Helena. Course of Brazilian Civil Law. 2nd Volume. 10th Edition. Ed. Saraiva. P. 11.
RODRIGUES, Sílvio. Civil Law – Vol. 2 – General Part of Obligations. 30th ed. São Paulo: Saraiva, 2002
SALVO VENOSA, Sílvio. General Theory of Obligations and General Theory of Contracts. 3rd ed. São Paulo: Atlas. 2003.
SALVO VENOSA, Sílvio. Ibidem
DE BARROS MONTEIRO, Washington (1997, vol. 4:8).
DINIZ, Maria HelenaIbidem , P. 11.
RODRIGUES, Sílvio. Ibidem , 30th ed. São Paulo: Saraiva, 2002
SALVO VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
DINIZ, Maria HelenaIbidem , P. 11.
SALVO VENOSA, Sílvio. Ibidem , 3rd ed. São Paulo: Atlas. 2003.
