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Full text of "The civil code of Brazil, being law no. 3,071 of January 1, 1916 : with the corrections ordered by law no. 3,725 of January 15, 1919, promulgated July 13, 1919 : Diario official, vol. LXVII, no. 159"

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CIVIL CODE OF BRAZIL 



LEGAL CARD. 



CORRESPONDENTS 

GUAYAQUIL (Ecuador), 

Jos6 Luis Tamayo, of the Ecuadorian Bar. 

GUATEMALA CITY (Guatemala), 

L. De Leon Flores, of the Guatemalan Bar. 

SAN JOSE (Costa Rica), 

Luis Anderson, of the Costa Rican Bar. 

HAVANA (Cuba), 

Mendoza & Mendoza, of the Cuban Bar. 

PORT AU PRINCE (Haiti), 

Edmond Lespinasse, of the Haitian Bar. 



REFERENCES 

THE NATIONAL CITY BANK OF NEW YORK 

FIRST NATIONAL BANK OF BOSTON 

AMERICAN FOREIGN BANKING CORPORATION 

AMERICAN INTERNATIONAL CORPORATION 

G. AMSINCK & CO. (NEW YORK) 

WILSON & COMPANY (CHICAGO) 

CENTRAL LEATHER COMPANY (NEW YORK) 

WESTERN ELECTRIC COMPANY 

EDISON ELECTRIC COMPANY 

ALUMINUM CO. OF SOUTH AMERICA 

MERGENTHALER LINOTYPE COMPANY, ETC. 



THE 



Civil Code of Brazil 



This translation of the "Civil Code of Brazil" has been 
adopted as one of the "Foreign Code Series" of the Compara- 
tive Law Bureau of the American Bar Association. 

WM. W. SMITHERS, 

Director, 



OTHER WORKS OF THE SERIES : 

Visigothic Code. By S. P. Scott. 

Swiss Civil Code. By R. P. Shick and Charles Wetherill. 

Civil Code of Argentina. By Frank J. Joannini. 

Civil Code of Peru. By Frank J. Joannini. (Ready for press.) 

Las Siete Partidas. By S. P. Scott. (Ready for press.) 



AliDAO, CAMPOS ,& GIL 

One Wall Stbeet 
New Yokk City 



ST. LOUIS 

THE THOMAS LAW BOOK CO. 
1920. 



THE 



Civil Code of Brazil 



Being 

Law No. 3,071 of January 1, 1916, in effect January 1, 1917, with tlie 

Corrections ordered by Law No. 3,725, of January 

15, 1919, Promulgated July 13, 1919. 



DIARIO OFFICIAL, VOL. LXVII, No. 159. 



Translated 

FROM THE OFFICIAL PORTUGUESE TEXT 

By 

JOSEPH WHELESS 

Of the Bars of New York, Missouri and Tennessee ; Author of A Compendium of the 
Laws of Mexico, The Commercial Codes of Spain and Spanish America, 
etc., etc. ; Associate Editor of the American Bar Association 
Journal ; Member of the Bureau of Comparative Law 
of the American Bar Association, Of the 
American Society of Interna- 
tional Law, etc., etc. 

Associated With 
AI/DAO, CAMPOS ,& GIL 

One Wall Street 
New Yoek City 



ST. LOUIS 

THE THOMAS LAW BOOK CO. 
1920. 



Copyright 1920 

By ZaSEBIS. Whexess 

All Rights Reserved. 



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Dedicated 

TO 

My Good Friend and Erudite Associate 

ENRIQUE GIL, Esq. 

""! OF the 

Argentine Bar 

In Token op Esteem and Appreciation. 

— J. W. 



FOREWORD. 



The new Civil Code of Brazil, here presented in transla- 
tion to lawyers, students of comparative law and business 
men of English speech, is well worthy of study and of ad- 
miration, as the latest as well as ablest expression of scien- 
tific law-making in so important a sphere as is the Corpus 
Juris Civilis of a great and law-loving People. "In truth, 
the Brazilian Civil Code is the greatest monument of juridi- 
cal codification of America, ' ' says the distinguished Jurist, 
Dr. de Lacerda, in his Historical and Critical Synthesis in- 
troductory to the new Code. A comparative study of its 
texts must justify this criticism of the finished production ; 
the long period of time of its elaboration, and the distin- 
guished names of its collaborators, lend a high sanction to 
this authoritative opinion. 

'This work of labor and of love is offered to the public, in 
the hope of its translator, that by giving access to a knowl- 
edge of the advanced legal thought and the liberal concepts 
of civil justice which inspire this work of legislation, it 
may contribute in a measure to the promotion of the his- 
toric ties of friendship and appreciation which have sig- 
nalized the relations of the United States and Brazil 
throughout the century of the latter 's independence. The 
importance of the material relations between the peoples 
of the two great Republics is an added reason for making 
known to the one the great body of civil laws of the other, 
which regulate as well the rights of property and business 
of foreign persons having legitimate interests in Brazil. 

Brazil is a country larger than the United States, covers 
more than half the continent of South America, and its 
population, according to the new census figures today pub- 
lished, is over 23,000,000, or more than half the population 
of aU South America. It is the law, therefore, which rules 
the lives and fortunes of the greatest political entity of 
Latin America, that may be given deserved attention in 
this volume. 

ii 



X FOREWOBD. 

It is proper, and indeed quite necessary for a just appre- 
ciation of the present Code, to make known something of 
its legal antecedents. I shall limit these lines to presenting 
a brief retrospect of the civil law in Brazil, following an 
equally brief glimpse at its historical accompaniments. The 
sources of the data here simply reproduced, are the ' ' Syn- 
thesis" of Senator de Lacerda, above mentioned, and the 
valuable study of Brazilian Legal Bibliography published 
by my friend Dr. Edwin M. Borchard, Professor of Law, 
Yale University, and late Law Librarian of Congress, in his 
"Guide to the Legal Literature of Argentina, Brazil and 
Chile," Government Printing Office, 1917. But first we 
may recall the interesting circumstances of how Brazil be- 
came Portuguese and the rest of America Spanish, this 
sketch being culled from a previous unedited work of the 
present writer. 

By a Bull of 1454, Pope Nicholas V. had magnanimously 
granted to Portugal the exclusive right of explorations, dis- 
coveries and conquest "on the road to Mandalay" and the 
Indies, naturally contemplating only the route around 
Africa which was then being attempted, and which was 
afterwards realized by Bartholomeu Diaz in 1487. As soon 
as the epochal voyage of Columbus for Spain had seemed 
to demonstrate that India and the East could be reached 
by way of the West, the consequent conflict of interests 
became at once apparent. Spain hastened to present her 
claims, ahead of Portugal, to the Pope, then the infamous 
Rodrigo Borgia, known in order of apostolic succession as 
Alexander VI. and himself a native of Spain. He was 
graciously complaisant, and on May 3, 1493, within six 
weeks after the return of Columbus, made a "bull" in 
which, "out of our pure liberality, certain knowledge, and 
plenitude of apostolic power, and by virtue of the au- 
thority of Omnipotent God granted to us in St. Peter, and 
of the Vicarship of Jesus Christ which we administer upon 
earth"! — ^he bestowed upon the King and Queen of Spain 
all lands already discovered or hereafter to be discovered 
in the Western Ocean. 

Portugal instantly protested, and the munificent bestower 
of continents of which his certain knowledge had certainly 
been ignorant the day before, was moved to amend his 



FOBEWOBD. XI 

gratuity. So on the very next day His Holiness made an 
amended partition of the unknown earth, out of the self- 
same "de nostra mera liberalidade et ex certa scientia, ae 
de apostolicae potestatis plenitudine." He naively drew a 
line from north to south, one hundred leagues west of the 
Azores and Cape Verde Islands, decreeing that all the lands 
discovered or to be discovered to the west of that meridian 
should belong to Spain, anything eastward thereof to Por- 
tugal. But as there are about ten degrees of longitude dif- 
ference between these two groups of islands, the hundred- 
league-west line of demarcation was confusingly vague, 
particularly in a document dictated "ex certa scientia" 
by an agency acting "de apostolicae potestatis pleni- 
tudine," 

To remedy this geographic "bull," the two Powers, the 
next year, by the Treaty of Tordesillas, June 7, 1494, 
agreed to shift the line to 370 leagues west of the Cape 
Verde Islands, a line corresponding to the 50th degree of 
longitude west of Greenwich, and striking the mainland of 
South America across the mouth of the Bio Amazon. Thus 
the great continental projection eastward of this line, now 
part of Brazil, fell to Portugal and is today of Portuguese 
speech and traditions; while all of the vast regions to the 
west became and remained Spanish, and Spain thencefor- 
ward claimed the right to exclude all other peoples from 
settlements or trade "beyond the line." 

By reason of this fortuitous land-fall of Brazil to the 
King of Portugal, its history has differed greatly from that 
of the Spanish American colonies. Although there were no 
Conquistador es in Brazil, says Dr. Borchard, it was the 
victim of a backward colonial policy until 180S, when the 
modem era may be said to have begun. In that year the 
Prince Regent of Portugal, Dom Joao, fleeing before Na- 
poleon's troops, landed in Brazil, bringing in his train 
several thousand Portuguese imigrants. One of his earliest 
acts was to repeal the laws prohibiting industries and to 
establish economic instruments and machinery of progress, 
such as opening the ports to commerce, the institution of 
banks and printing presses, and other liberal measures. 

In 1815 the country was proclaimed as the Kingdom of 
Brazil. Three years after, Dom Joao was proclaimed King 



xu 



POREWOBD. 



of Portugal, and left Brazil under the control of his son 
Dom Pedro. Prom this time on political instability pre- 
vailed in Brazil. On September 7, 1822, dissatisfaction 
with the Portuguese domination led to a political uprising, 
which resulted, on October 12, 1822, in the proclamation of 
a constitutional monarchy, at the head of which Dom Pedro, 
who had espoused the Brazilian cause, placed himself. A 
popular assembly, called in May, 1823, adopted a Constitu- 
tion on March 25, 1824, which is notable for the frequency 
with which it was violated. The Emperor proved so un- 
popular that political opposition compelled him, on April 
7, 1831, to abdicate in favor of his son, Dom Pedro II., 
whose long reign until 1889 marks the gradual develop- 
ment of modern Brazil. The bloodless revolution of 1889, 
which compelled the abdication of Dom Pedro II. on No- 
vember 15th of that year, was followed by a provisional 
Government of some fifteen months. 

The Federal Constitution of the United States of Brazil 
was adopted on February 24, 1891, the twenty previous 
Provinces being erected into States with far more power 
than they before possessed, and the City of Rio de Janeiro 
was set aside in a Federal District as the Capital of the 
Republic. The Constitution of 1891 is modeled upon that 
of the United States, the States possessing all legislative 
power not expressly delegated to the Federal Union, 
much as in the United States. The Federal Government 
reserved exclusive jurisdiction to enact Civil and Com- 
mercial Codes and laws, to govern throughout the coun- 
try, and to enact Penal Law for the Federal District. 
The States have jurisdiction over adjective or procedural 
law in application of the Civil and Commercial Codes. 
There is a dual judicial system. Federal and State, closely 
resembling that of the United States. 

The legislation of Brazil in civil matters is based upon 
the old Portuguese law, which passed from Portugal to the 
Empire of Brazil and later to the Republic. By a law of 
October 20, 1823, and Art. 85* of the Constitution of 1891, 

* (Reference should be Art. 83, which, however, only reads "as 
leis do antigo regimen"— "the laws of the old system shall con- 
tinue in force until repealed." I have no opportunity to verlfv 
other references.) 



FOBEWORD. XUl 

the Ordinances of Philip I. (II. of Spain), compiled in 
1603, were declared in force in Brazil; and much of this 
law continued in force until the newly enacted Civil Code 
took effect on January 1, 1917. The sources of Portuguese 
Law are the Visigothic Code (cir. 693) and the Decretals 
of the Councils, the customary law, the foraes or municipal 
charters and statutes, the Roman Law, as found in the 
Breviary of Alaric and its subsidiary sources, the Siete 
Partidas (1263), the canon law with its later concordias, 
and the general legislation which commenced] in 1211. 
Soon after the Crowns of Spain and Portugal were united 
in the person of Philip I. in 1580, Philip ordered the revi- 
sion of the Ordenagoes of Manual (an earlier recopilation), 
by decree of June 5, 1595. The resulting compilation has 
received the name Ordena§6es Philippinas, or as it is com- 
monly known, Codigo Philippino, promulgated by Philip 
II. on January 11, 1603, and confirmed by King Joao IV, 
by law of January 29, 1643 (after the separation of the 
Kingdoms). It constitutes the great landmark in the civil 
law of Brazil, for by the Brazilian law of October 20, 1823, 
and Art. 85* (see note, supra) of the Constitution of 1891, 
the 'Codigo Philippino has been given the force of law in 
Brazil, except for such parts as have been repealed; only 
with the coming into effect of the Civil Code on January 
1, 1917, has it gone out of force. 

With acknowledgements to Dr. Borchard for the forego- 
ing, we will make a briefer summary of the efforts at codi- 
fication in Brazil, which resulted in this its first Civil Code, 
in 1917, as recounted by Dr. de Lacerda. Of the prevailing 
system, or rather disorder of civil law in Brazil, prior to 
the Code, he first says : ' ' Brazilian civil law was none other 
than a variable agglomeration of laws, orders, letters pat- 
ent, resolutions and regulations, suppressing, repairing or 
sustaining the Ordenagoes do Reino, venerable antiquated 
monument, worn down by the action of a long course of 
uncultured and uncertain jurisprudence, whose high priests 
recited around it the cold texts of the Digest, read in the 
twilight glimmer of the Law of <Jood Reason. Brazil was 
strangled in the accumulation, ever becoming greater, of a 
polychrome, confused and contradictory legislation, which 
had been piling up through the centuries; to find escape 



XIV 



POBEWOBD. 



from such mortifying higgle-piggle was one of its most 
ardent aspirations." 

There were four unsuccessful attempts at codification 
of the Brazilian civil law made before the final effort 
was crowned with brilliant success. By Decree of De- 
cember 22, 1858, it was ordered that the Minister of Jus- 
tice should contract with a jurist of his choice for the 
preparation of a project for a Oivil Code. On January 
11, 1859, the work was entrusted to the eminent jurist 
Teixeira de Preitas, to whom the Imperial Government, 
on February 15, 1855, had already entrusted the arduous 
task of consolidation of the civil laws preparatory to the 
intended codification. The result of the long protracted 
labors of this jurist was what he. himself submitted, not 
as a project but as a "Sketch," consisting of 4,908 
Articles, and even then unfinished, as it left untouched 
the entire Book III, the very important subject "Of 
Obligations." The excessive work contributed to unset- 
tle the mind of this, the greatest civilist of South Amer- 
ica, and thus the first attempt came to a sad end. 

In 1872 the work was entrusted to the Councillor Na- 
buco de Araujo, the same who, as Minister of Justice in 
1859, had contracted it with Dr. de Freitas. The new 
codifier died shortly afterwards, having drafted but 182 
Articles, with no plan outlined for the distribution of the 
matters to comprise the work. The work carried him 
unhappily to his grave. 

The third attempt was due to Felicio dos Santos, who 
in 1881 offered to the Imperial Government his "Apon- 
tamentos para o Projecto de Codigo Civil Brasileiro. ' ' In 
July of that year, the Minister of Justice, Souza Dantas, 
appointed a Commission, composed of the principal jur- 
ists, to examine these "Apontamentos." This Commis- 
sion promptly set about its work, and on September 27, 
presented a report, in which, after censuring severely the 
serious defects of method followed, or rather, the entire 
want of method proper for a codification, concluded : ' ' That, 
as the Apontamentos para o Projecto do Codigo Civil Bra- 
sileiro have high merit, as a preparatory work, their author 
can, by retouching them with art, prepare a project in 
shape for frank revision ; as they stand, they do not afford 



FOBEWOED. XV 

sufficient basis." In view of this conclusion, and insisting 
upon carrying forward the task of codification, the Gov- 
ernment ordered the Commission to continue to function, 
until the author should present a project of the Civil Code ; 
some of the members withdrew, the others never met again. 
Then Felicio dos Santos, in March, 1882, himself resigned, 
and at once presented to the Chamber of Deputies a pro- 
ject for a Civil Code. There several members presented a 
bill approving the work, to the end that it should serve as 
a Civil Code. Both these projects died, suffocated in the 
pigeon holes of the Committee on Justice. The work con- 
tained 2,962 articles of good doctrine, but wanting in 
method, although earnestly defended by its author. 

The Minister of Justice, in 1889, appointed another 
Commission to treat the matter. Shortly after it began 
its work, the Republic was proclaimed, and the Commis- 
sion considered itself dissolved. The Provisional Govern- 
ment, however, did not leave the great problem forgotten. 
Indeed, on July 12, 1890, the Department of Justice signed 
a contract with Coelho Rodrigues, for the preparation of 
a project of Civil Code within three years. This project 
was presented in 1893, but was not accepted by the Gov- 
ernment. The author then offered it to the Senate, where 
it led to prolonged debates; finally, the Senate passed a 
bill authorizing the Government to contract with a jurist 
or to appoint a Commission of jurists, to revise the work, 
but this was rejected in the Chamber of Deputies; thus 
the fourth attempt was defeated. 

Finally, the Government of President Campos Salles 
turned resolutely to the work of endowing the country 
with a Civil Code, in which work it was aided efficiently by 
its Minister of Justice, Epitacio Pessoa (now President of 
Brazil). In January, 1899, one of the most distinguished 
jurists of Brazil, Clovis Bevilaqua, was commissioned to 
draft the project which should serve as the basis of the 
work of codification. In November of that year the pro- 
ject, accompanied by a report, was presented to the Gov- 
ernment, and promptly submitted to a Commission com- 
posed of distinguished jurists, which, under the presidency 
of Minister Pessoa, held a long series of meetings, for dis- 
cussion, arrangement, and final redaction. At last, on 



XVI FOBEWOBD. 

November 10, 1900, it was approved, and presented by the 
Minister to the President, by whom it was transmitted with 
a special message to the Congress, on November 17, 1900. 
The lengthy review of the proceedings in House and Sen- 
ate, before Committees, Commissions, and under intense 
debate and frequent deadlock between the two Houses, for 
over sixteen years, must be passed over. It was finally en- 
acted into law on January 1, 1916, to go into effect Janu- 
ary 1, 1917. It was approved and signed by President 
Wenceslao Braz Pereira Gomes, who offered to the Nation 
the Brazilian Civil Code, repeating the words of Justinian : 
Summa itaque ope et alacri studio has leges nostras ac- 
cipite. 

Joseph Wheless. 
New York City, July 27, 1920. 



TABLE OF CONTENTS 

OF THE 

Civil Code of Brazil 



INTRODUCTION. 

Of the Law and Its Effects, with General 
Rules of Its Application. 



GENERAL PART 

PRELIMINABY DISPOSITION. 

BOOK I 

OF PERSONS. 

TITLE I. 

OF THE DIVISION OF PERSONS. 

CHAPTER I. 
Of Natueal Persons. 

CHAPTER II. 

Of Juridical Persons. 

Section I. General DiBpositions. 
Section II. Of the Civil Register of Juridical PerBons. 
Section III. Of Civil Societies or Associations. 
Section IV. Of Endowments. 



TITLE II. 

OF THE CIVIL DOMICILE. 



XVU 



xviii TABLE OF CONTENTS. 

BOOK II 

OP PROPERTY. 

SINGLE TITLE. 

OF THE DIFFERENT CLASSES OF PROPERTY. 

CHAPTER I. 
Of Pkopbrty Consideeed in Itself. 

Section L Of Immovable Property. 

Section II. Of Movable Property. 

Section III. Of Fungible and Consumable Things. 

Section IV. Of Things Divisible and Indivisible. 

Section V. Of Singular and Collective Things. 

CHAPTER II. 

Op Things Recipkocallt Considered. 

CHAPTER III. 

Op Public and Private Property. 

CHAPTER IV. 
Op Things "Which Are Outside op Commerce. 

CHAPTER V. 
Op the Property of the Family. 



BOOK III 

OF JURIDICAL FACTS. 

PRELIMINARY DISPOSITIONS. 
TITLE I. 

OF JURIDICAL ACTS. 



TABLE OF CONTEKTS. »X 

CHAPTER I. 
General Provisions. 

CHAPTER II. 
Of the Defects of Juridical Acts. 

Section I. Of Error or Ignorance. 

Section II. Of Deceit. 

Section III. Of Coercion. 

Section IV. Of Simulation. 

Section V. Of Fraud Against Creditors. 

CHAPTER III. 
Of the Conditions of Juridical Acts. 

CHAPTER IV. 

Of the Form of Juridical Acts and Their Proof. 

CHAPTER V. 

Of Nullity. 

TITLE II. 

OF ILLICIT ACTS. 

TITLE III. 

OF PRESCRIPTION. 

CHAPTER I. 

General Dispositions. 

CHAPTER II. 

Of the Causes Which Impede or Suspend Prescription. 

CHAPTER III. 

Op the Causes Which' Interrupt Prescription. 

CHAPTER IV. 
Op the Periods of Prescription. 



XX TABLE OP CONTENTS 



SPECIAL PART 



BOOK I 

OP THE RIGHTS OP PAMILY. 



TITLE I. 

OP MARRIAGE. 



CHAPTER I. 

Op the Preliminary Pormalities. 

CHAPTER II. 
Op Impediments. 

CHAPTER III. 
Op the Interposing op Impediments. 

CHAPTER IV. 

Op the Celebration op the Marriagr 

CHAPTER V. 
Op the Proofs op Marriage. 

CHAPTER VI. 

Op Void and Voidable Marriages. 

CHAPTER VII. 
Penal Provisions. 



TITLE II. 

OF THE JURIDICAL EFFECTS OF MARRIAGE. 

CHAPTER I. 

General Dispositions. 



TABLE OF CONTENTS XXI 

CHAPTER II. 
Of the Rights and Duties op the Husband. 

CHAPTER III. 

Of the Rights and Duties of the Wipe. 



TITLE III. 

OF THE REGIMEN OF PROPERTY BETWEEN THE SPOUSES. 

CHAPTER I. 
General Dispositions. 

CHAPTER II. 
Op the Regimen op Univeksal Community. 

OHAPTER III. 

Op the Regimen of Partial Community. 

CHAPTER IV. 
Of the Regimen of Separation. 

OHAPTER V. 
Op the Dotal Regimen. 

Section I. Of tbe Constitution of the Dowry. 

Section H. Of the Rights and Obligations of the Husband in 
Relation to the Dotal Property. 

Section III. Of the Restitution of the Dowry. 

Section IV. Of the Separation of the Dowry and Its Administra- 
tion by the Wife. 

Section V. Of Paraphernal Property. 

CHAPTER VI. 

Of Antenuptial Gifts. 



xxii TABLE OF CONTENTS 

TITLE IV. 

OF THE DISSOLUTION OF THE CONJUGAL SOCIETY, AND 
OF THE PROTECTION OF THE PERSON OF THE CHILDREN. 

CHAPTER I. 

Op the Dissolution of the Conjugal Society. 

CHAPTER II. 

Op the Protection op the Peeson of the Children. 



TITLE V. 

OF THE RELATIONS OF RELATIONSHIP (PARENTE8C0). 

CHAPTER I. 
General Dispositions. 

CHAPTER II. 

Of Legitimate Filiation. 

CHAPTER III. 
Op Legitimation. 

CHAPTER IV. 
Op the Acknowledgment op Illegitimate Children. 

CHAPTER V. 
Of Adoption. 

CHAPTER VI. 

Op the Parental Power {Patrio Poder) . 

Section 1. General Dispositions. 

Section II. Of the Patrio Poder with Respect to the Person of 

the Children. 
Section III. Of the Patrio Poder with Respect to the Property of 

the Children. 
Section iV. Of the Suspension and Extinction of the Patrio 
Poder. 

CHAPTER VII. 
Op Support {Alimentos). 



TABLB OP CONTENTS XXIU 

TITLE VI. 

OF GUARDIANSHIP, CURATORSHIP AND ABSENCE. 

CHAPTER I. 

Of Guardianship (Tutela). 

Section I. Of Guardians (TMtores). 

Section II. Of those Incapable to Exercise Guardiansliip. 

Section III. Of the Excuse of Guardianship. 

Section IV. Of the Guaranty of Guardianship. 

Section V. Of the Exercise of Guardianship. 

Section VI. Of the Property of Orphans. 

Section VII. Of the Rendition of Guardianship Accounts. 

Section VIII. Of the Cessation of the Guardianship. 

CHAPTER II. 

Op CuRATORSHip {Curat ela). 

Section I. General Dispositions. 
Section II. Of Spendthrifts [Prodigos). 
Section mi. Of the Curatorshlp of the Unborn. 

CHAPTER III. 

Op Absence. 

Section I. Of the Guardianship of Absentees. 
Section II. Of Provisional Succession. 
Section III. Of the Definitive Succession. 

Section IV, Of the Effects of Absence with Respect to the Rights 
of Family. 



BOOK II 

OF THE RIGHTS OF THINGS. 



TITLE I. 

OF POSSESSION. 



XXIV TABLE OF CONTENTS 

CHAPTER I. 

Op Possession and Its Classipioation. 

CHAPTER II. 

Of the Acquisition of Possession. 

CHAPTER III. 

Of the Effects of Possession. 

CHAPTER IV. 

Of the Loss of Possession. 

CHAPTER V. 
Op Possessory Protection. 



TITLE II. 

OP OWNERSHIP (PROPRIEDADE). 

CHAPTER I. 
Op Ownership in General. 

CHAPTER II. 

Of the Ownership of Immovables. 

Section I. Of the Acquisition of Immovable Ownership. 
Section II. Of Acquisition by Transcription of Title. 

Section III. Of Acquisition by Accession. 

I. Of Islands. 

II. Of Alluvion. 

III. Of Avulsion. 

IV. Of Abandoned Channel. 

v. Of Constructions and Plantations. 

Section IV. Of Usucaption. 



TABLE OF CONTENTS XXV 

Section V. Of the Rights of Visinage (VisinhanQa) . 

I. Of the Nocive Use of Property. 

II. Of Boundary Trees. 

III. Of Forced Passage. 

IV. Of Waters. 

V. Of the Limits Between Estates. 

VI. Of the Right to Construct. 

VII. Of the Right of Enclosure (Tapagem). 

Section VI. Of the Loss of Immovable Ownership. 

CHAPTER III. 

Of the Acquisition and Loss of Movable Ownership. 

Section I. Of Occupation. 

I. Of HunUng. 

II. Of Pishing. 

III. Of Finds, 
rv. Of Treasure*. 

Section II. Of Specification. 

Section III. Of Confusion, Commixture, and Adjunction. 

Section IV. Of Usucaption. 

Section V. Of Tradition. 

CHAPTER IV. 

Op Joint Ownership (Condommio). 

Section I. Of the Rights and Duties of Co-Owners. 
Section II. Of the Administration of Co-Ownershlp. 
Section III. Of Oo-Ownership of Walls, Fences, Etc. 
Section IV. Of Joint Pasturage. 

CHAPTER V. 
Op Defeasible Ownership. 

CHAPTER VI. 
Op Literary, Scientific, and Artistic Property. 



TITLE III. 

of real eights upon things of another. 



XXVI TABLE OP CONTENTS 

CHAPTER I. 

General Dispositions. 

CHAPTER II. 

Op Emphyteusis. 

CHAPTER III. 

Op Predial Servitudes. 

Section I. Of the Constitution of Servitudes. 
Section II. Of the Extinction of Servitudes. 

CHAPTER IV. 
Op Usupbuct. 

Section I. General Dispositions. 
Section II. Of the Rights of the Usufructuary. 
Section III. Of the Obligations ©f the Usufructuary. 
Section IV. Of the Extinction of the Usufruct. 

CHAPTER V. 

Op Use. 

CHAPTER VI. 
Op Habitation. 

CHAPTER VII. 
Op Income Charged Upon Immovables. 

CHAPTER VIII. 

Op the Real Rights op Guaranty. 

CHAPTER IX. 
Op Pledge. 

Section I. General Dispositions. 
Section II. Of the Legal Pledge. 
Section III. Of the Agricultural Pledge. 
Section IV. Of Surety Bonds of Securities. 
Section V. Of the Transcription of the Pledge. 
Section VI. Of the Extinction of the Pledge. 



TABLE OF CONTENTS XXVll 

CHAPTER X. 

Of Antichresis. 



CHAPTER XI. 
Of Mortgage. 

Section I. General Dispositions. 

Section II. Of the Legal Mortgage. 

Section III. Of the Inscription of the Mortgage. 

Section IV. Of the Extinction of the Mortgage. 

Section V. Of the Mortgage of Railroads. 

Section VI. Of the Register of Immovables. 



BOOK III 

OP THE LAW OP OBLIGATIONS. 



TITLE I. 

OP THE CONDITIONS OF OBLIGATIONS. 

CHAPTER I. 
Op Obligations. 
Section I. Of Obligations to Give a Certain Thing. 

CHAPTER II. 
Of Obligations to Do. 

CHAPTER III. 

Of Obligations Not to Do. 

CHAPTER IV. 

Op Alternative Obligations. 

CHAPTER V. 
Of Divisible and Indivisible Obligations. 



XXviii TABLE OP CONTENTS 

CHAPTER VI. 
Of Solidaey Obligations. 

Section I. General Dispositions. 
Section II. Ot Active Solidarity. 
Section III. Of Passive Solidarity. 

CHAPTER VII. 

Op the Penal Clause. 



TITLE II. 

OF THE EFFECTS OF OBLIGATIONS. 

CHAPTER I. 

General Dispositions. 

CHAPTER II. 
Op Payment. 

Section I. Of Who Must Pay. 

Section II. Of Those Who Must Be Paid. 

Section III. Of the Object of the Payment and Its Proof. 

Section IV. Of the Place of Payment. 

Section V. Of the Time of Payment. 

Section VI. Of Default. 

Section VII. Of Undue Payment. 

CHAPTER III. 
Op Payment by Consignation. 

CHAPTER IV. 
Op Payment With Subrogation. 

CHAPTER V. 

Op the Imputation op Payment. 

CHAPTER VI. 
Op Dation in Paymijnt. 



TABLE OF CONTENTS XXIX 

CHAPTER VII. 
Op Novation. 

CHAPTER VIII. 
Op Compensation (Set-off). 

CHAPTER IX. 

Op Transaction {Compromise). 

CHAPTER X. 
Op Aebitbation. 

CHAPTER XI. 

Op Conpusion (Merger). 

CHAPTER XII. 

Op the Remission op Debts. 

CHAPTER XIII. 

Op the Consequences op the Non-Pebpobmance 
OP Obligations. 

CHAPTER XIV. 

Op Losses and Damages. 

CHAPTER XV. 
Op Legal Interest. 



TITLE III. 

of the assignment op credits. 



TITLE IV. 

op contracts. 

CHAPTER I. 

General Dispositions. 



XXX TABLE OP CONTENTS 

CHAPTER II. 
Of Bilateral Contracts. 

CHAPTER III. 

Op Earnest. 

CHAPTER IV. 

Op Stipulations in Favor op Third Persons. 

CHAPTER V. 
Op Redhibitory Vices. 

CHAPTER VI. 
Op Eviction. 

CHAPTER VII. 

Op Aleatory Contracts. 



TITLE V. 

of the several kinds op contracts. 

CHAPTER I. 
Op Purchase and Sale. 

Section I. General Dispositions. 

Section II. Of Special Clauses In Purchase and Sale. 

I. Of Re-Purchase. 

II. Of Sales Upon Approval. 

III. Of Pre-emption or Preference. 

IV. Of the Pact of Better Buyer. 

V. Of the Commissory Pact. 

CHAPTER II. 
Op Exchange. 

CHAPTER III. 
Of Donations. 

Section I. General Dispositions. 

Section II. Of the Revocation of the Donation. 



TABLE OF CONTENTS XXXI 

CHAPTER IV. 
Op Renting and HmiNa. 

Section I. Of the Hiring of Things. 

I. General Dispositions. 

II. Of the Location of Estates. 

III. Special Dispositions As to Urban E<statea. 

IV. Special Dispositions As to Rural Estates. 
Section II. Of the Location of Services. 

Section III. Of Building Contracts. 

CHAPTER V. 
Op Loans. 

Section I. Of Commodatum. 
Section II. Of Mutuum. 



CHAPTER VI. 
Of Deposit. 

Section I. Of Voluntary Deposit. 
Section II. Of Necessary Deposit. 

CHAPTER VII. 
Op Mandate. 

Section I. General Dispositions. 
Section II. Of the Obligations of the Mandatary. 
Section III. Of the Obligations of the Principal. 
Section IV. Of the Extinction of the Mandate. 
Section V. Of the Judicial Mandate. 

CHAPTER VIII. 

Op the Unauthorized Conduct op Business. 

CHAPTER IX. 
Op Edition. 

CHAPTER X. 
Op Dramatic Representation. 



XXXU TABLE OP CONTENTS 

CHAPTER XI. 
Of Societies. 

Section I. General Dispositions. 

Section II. Of tlie Reciprocal Riglits and Obligations of the Mem- 
bers. 

Section III. Of the Obligations of the Society and of the Mem- 
bers to Third Persons. 

Section IV. Of the Dissolution of the Society. 

CHAPTER XII. 

Op RuBAii Partnerships. 

Section I. Of Agricultural Sharing. 
Section II. Of Stock-raising on Shares. 

CHAPTER XIII. 
Op the Constitution op Income. 

CHAPTER XIV. 
Of the Contract op Insurance. 

Section I. General Dispositions. 

Section II. Of the Obligations of the Insured. 

Section III. Of the Obligations of the Insurer. 

Section IV. Of Mutual Insurance. 

Section V. Of Life Insurance. 

CHAPTER XV. 
Op Q-aming and of Betting. 

CHAPTER XVI. 
Op Surety. 

Section I. General Dispositions. 

Section II. Of the Effects of Surety. 

Section III. Of the Elxtinction of the Security. 



TITLE VI. 

of obligations by unilateral declaration of wili.. 



TABLE OF CONTENTS. XXXIU 

CHAPTER I. 
Of TrriiEs to Beaber. 

CHAPTER II. 
Op the Promise op Reward. 



TITLE VII. 

OF obligations foe illicit acts. 



TITLE VIII. 

OF THE liquidation OF OBLIGATIONS. 

CHAPTER I. 
General Dispositions. 

CHAPTER II. 

Op the Liquidation op Obligations Arising From 

Illicit Acts. 



TITLE IX. 

bditiobs' mee 

7. Of Preference and Creditory Liens, 



OF ceeditiobs' meetings. 



BOOK IV 

OP THE RIGHT OF SUCCESSIONS. 



TITLE I. 

OF SUCCESSION IN GENEBAL. 

CHAPTER I. 

General Dispositions. 



XXxiv TABLE OP CONTENTS 

CHAPTEE II. 

Of the Transmission of the Estate. 

CHAPTER III. 

Of the Acceptance and Renunciation of the 

Inheeitancb. 

CHAPTER IV. 
Of Vacant Inhbbitancbs. 

CHAPTER V. 
Of Those Who Cannot Succeed. 



TITLE II. 

of legitimate succession. 

CHAPTER I. 

Op the Order of Succession. 

CHAPTER II. 

Of the Right op Representation. 



TITLE III. 

OP testambntaky succession. 

CHAPTER I. 

Of the Testament in Oeneeal. 

CHAPTER II. 
Of the Capacity to Make a Will. 

CHAPTER III. 

Of the Ordinary Forms op a Will. 

Section I. General Dispositions. 
Section II. Of the Public Tes.tament. 
Section III. Of the Closed Testament. 
Section V. Of th« Private Testament. 
Section V. Of the Testamentary Witnesses. 



TABLE OP CONTENTS. XXXT 

CHAPTER IV. 
Op Codicils. 

CHAPTER V. 
Of Special Testaments. 

Section I. Of the Maritime Testament. 
Section II. Of the Military Testament. 

CHAPTER VI. 

Of Testamentaby Dispositions in General. 

CHAPTER VII. 
Op Legacies. 

CHAPTER VIII. 

Of the Effects op Legacies and Their Payment. 

CHAPTER IX. 

Of the Lapsing of Legacies. 

CHAPTER X. 

Op the Right op Accretion Between Heirs and 

Legatees. 

CHAPTER XI. 
Of the Capacity to Acquire By Testament. 

CHAPTER XII. 

Op the Necessary Heirs. 

CHAPTER XIII. 

Of the Reduction op Testamentary Dispositionsj 

CHAPTER XIV. 
Op Substitutions. 

CHAPTER XV. 
Op Disinheritance. 



XXXVl TABLE OP CONTENTS. 

CHAPTER XVI. 

Op the Revocation op Testaments. 

CHAPTER XVII. 

Op the Executor. 



TITLE IV. 

OF THE INVENTORY AND DIVISION. 

CHAPTER I. 

Op the Inventory. 

CHAPTER II. 
Op the Division. 

CHAPTER III. 

Op CoNCEAiiED Assets. 

CHAPTER IV. 
Op Collations. 

CHAPTER V. 

Op the Payment op Debts. 

CHAPTER VI. 

Op the Guaranty op the Hereditary Shares. 

CHAPTER VII. 

Op the Nullity op the Partition. 

FINAL DISPOSITIONS. 



THE CIYIL CODE 

OF THE 

UNITED STATES OF BRAZIL 



INTRODUCTION 

Art. 1. The law obligates throughout the Brazilian terri- 
tory, in its territorial waters, and even in foreign countries, 
in so far as interna-tional principles and conventions recog- 
nize its extraterritoriality. 

Art. 2. Laws shall go into effect, when they provide no 
other terms : in the Federal District, three days after they 
are officially published, fifteen days in the State of Rio de 
Janeiro, thirty days in the maritime States and in Minas 
Geraes, one hundred days in the others, including the dis- 
tricts not constituted into States. 

In foreign countries they will take effect four months 
after they are officially published in the Federal Capital. 

Art. 3. The law shall not, in any case, prejudice vested 
rights, perfected juridical acts, or the res adjudicata. 

§ 1. Rights are considered as vested {adquiridos) , which 
the person entitled thereto (o sen titidar), or anyone for 
him, may exercise, as are also those, the beginning of exer- 
cise of which depends upon a fixed time or pre-established 
condition, which is unalterable at the will of another. 

§ 2. A perfected juridical act is one which is already 
consummated according to the law in force at the time when 
it was effected. 

§ 3. The thing adjudicated, or adjudged case (caso 
jvlgado), is the judicial decision against which there is no 
further recourse. 

1 



i INTKODUCTION 

Art. 4. A law is only revoked or repealed by another 
Igw ; but a special provision does not repeal a general, nor 
a general repeal a special, except when it, or its subject, is 
referred to and explicitly or implicitly altered. 

Art. 5. No one is excused by claiming not to know the 
law ; neither by reason of the silence, or obscurity or uncer- 
tainty, of the law is a judge excused from rendering judg- 
ment or proceeding with a case. 

Art. 6. The law which creates exc,eptions to general 
rules or restrict rights, embraces only the cases which it 
specifies. 

Art. 7. In oases of omission {casos omissos), the provi- 
sions concerning analogous cases are applied, and where 
there are none such, the general principles of law {direito- 
jus). 

Art. 8. The national law of the person determines the 
civil capacity, the rights of family, the personal relations 
of married persons (conjuges), and the regimen of prop- 
erty during marriage, it being lawful, in the latter case, to 
adopt the Brazilian law. 

Art. 9. The law of the domicile, and in default of it, 
the law of the residence, shall be subsidiarily applied : 

I. When the person has no nationality ; 

II. When two nationalities are attributed to him, by 
reason of an unsettled conflict between the laws of the coun- 
try of birth and those of the country of origin ; if one of 
these countries is Brazil, the Brazilian law shall prevail. 

Art. 10. Property, movable and immovable, is governed 
by the law of the place where situated ; however, movables 
for his personal use, or which he has always with him, as 
well as those intended for transportation to other places, 
remain under the personal law of the owner. 



INTRODUCTION o 

Single Paragraph. Movables, the situation of which is 
changed pending a real action affecting them, continue 
subject to the law of the situation which they had at the be- 
ginning of the suit. 

Art. 11. The extrinsic form of acts, public or private, is 
governed by the law of the place in which they are executed. 

Art. 12. The means of proof are governed by the law of 
the place where the act, or fact, which is to be proven took 
place (se passou). 

Art. 13. With respect to the substance and the effect of 
obligations, the law of the place where they were contracted 
shall govern, unless otherwise stipulated. 

Single Paragraph. However, the Brazilian law shall 
always govern : 

I. Contracts made in foreign countries, when they are 
to be performed in Brazil. 

II. Obligations contracted between Brazilians in a for- 
eign country. 

III. Acts relative to immovables situated in Brazil. 

IV. Acts relative to the Brazilian mortgage system. 

Art 14. Intestate (legitima) or testamentary succession, 
the order of inheritance (ordem de vocagdo hereditaria), 
the rights of heirs, and the intrinsic validity of the provi- 
sions of the will, whatever may be the nature of the prop- 
erty or the country where it is situated, subject to the pro- 
visions of this Code regarding vacant inheritances {heran- 
gas vagas) in Brazil, shall be governed by the national law 
of the deceased; if the latter, however, was married to a 
Brazilian woman, or has left Brazilian children, they shall 
be subject to the Brazilian law. 

Single Paragraph. The Brazilian consular agents may 
serve as public officials in the execution and approval of 
the wills of Brazilians, made in a foreign country, observ- 
ing the provisions of this Code. 



4 INTBODUCTION 

Art. 15. The law of the place where an action is brought 
governs the jurisdiction (competencia) , the form of the 
process, and the means of defense ; the Brazilian tribunals 
being always competent in suits against persons domiciled 
or resident in Brazil, on account of obligations contracted 
or responsibilities assumed in this or in another country. 

Art. 16. The judgments of foreign courts shall be exe- 
cuted in Brazil, subject to (mediante) the conditions which 
the Brazilian law may prescribe. 

Art. 17. The laws, acts and judgments of other coun- 
tries, as well as private dispositions and agreements, shall 
not have effect when they offend the national sovereignty, 
the public order and good customs. 

Art. 18. In actions brought before the Brazilian tri- 
bunals, the plaintiffs, nationals or foreigners, resident out 
of the country, or who absent themselves from it during the 
suit, shall, when required by the defendant, give bond suffi- 
cient for the costs, if they have not in Brazil immovable 
property to secure their payment. 

Art. 19. Foreign juridical persons are recognized. 

Art. 20. Foreign public corporations cannot acquire or 
possess by any title, immovable property in Brazil, or right* 
susceptible of expropriation, except the lots necessary for 
the establishment of legations or consulates. 

Single Paragraph. The by-laws or agreements (com- 
promissos) of foreign stock companies for non-economical 
purposes, depend upon the approval of the Federal Govern- 
ment, in order to operate in Brazil, by themselves or 
through branches, agencies or establishments which repre- 
sent them; they are subject to the Brazilian laws and 
tribunals. 

Art. 21. The national law of juridical persons deter- 
mines their capacity. 



GENERAL PART 

PRELIMINARY DISPOSITION 



Art. 1. This Code governs the rights and obligations of 
a private order concerning persons, property, and their 
relations. 

BOOK I. 

OF PERSONS. 



TITLE I. 

Of the Division of Persons. 

CHAPTER I. 

Op Natural Persons. 

Art. 2. Every man is capable of civil rights and obliga- 
tions (na ordem civil). 

Art. 3. The law does not distinguish between nationals 
and foreigners in respect to the acquisition and enjoyment 
of civil rights. 

Art. 4. The civil personality of man commences at his 
birth with life ; but the law protects the rights of the unborn 
person (do nascituro) from his conception. 

Art. 5. Those absolutely incapable of exercising per- 
sonally the acts of civil life, are : 

5 



b CIVIL CODE OP BRAZIL. 

I. Minors under 16 years. 

II. Insane persons (loiicos) of all kinds. 

III. Deaf-mutes, who cannot express their will. 

IV. Absentees, declared such by act of the judge. 

Art. 6. Those incapable, relatively to certain acts (Art. 
147, no. 1), or to the manner of exercising them, are: 

I. Minors over 16 and under 21 years (Arts. 154 to 156) . 

II. Married women, while the conjugal society subsists. 

III. Spendthrifts (prodigos). 

IV. Savages (selvicolas) . 

Single Paragraph. The savages shall remain subject to 
the tutelary regimen established by special laws and regula- 
tions which shall cease as they become adapted to the 
civilization of the country. 

Art. 7. Incapacity, absolute or relative, is supplied in 
the manner provided in this Code, Special Part. 

Art. 8. The benefit of restitution is not comprised in 
the protection which the Civil Code confers upon incapa- 
bles. 

Art. 9. Minority ends with the completion of 21 years, 
the individual being then habilitated for all the acts of 
civil life. 

Single Paragraph. Incapacity, for minors, shall cease: 

I. By concession of the father, or if he be dead, of the 
mother, and by sentence of the judge, after hearing the 
guardian (tutor), if the minor has completed 18 years. 

II. By marriage. 

III. By the exercise of active public employment. 

IV. By the bestowal (collagao) of a scientific degree in 
a course of superior study. 

V. By the establishment of a civil or commercial busi- 
ness, with one's own means {economia propria). 



JURIDICAL PERSONS. 7 

Art. 10. The existence of a natural person terminates 
with his death. This is presumed, with respect to absentees, 
in the cases of Arts. 481 and 482. 

Art. 11. If two or more persons should decease on the 
same occasion, it not being possible to determine which of 
them perished first, they will be presumed to have died 
simultaneously. 

Art. 12. In the public register shall be inscribed : 

I. Births, marriages and deaths. 

II. Emancipation by act of father or mother, of by sen- 
tence of the judge (Art. 9, Single Paragraph, no. I). 

III. The interdiction of insane persons, deaf-mutes and 
spendthrifts. 

IV. Sentences declaratory of absence. 

CHAPTER II. 

Of Juridical Persons. 
Section I. General Dispositions. 

Art. 13. Juridical persons are of public law, internal or 
external, and of private law. 

Art. 14. Juridical persons of internal public law, are : 

I. The Union. 

II. Each of its States and the Federal District. 

III. Each of the Municipalities legally constituted. 

Art. 15. Juridical persons of public law are civilly re- 
sponsible for acts of their representatives who in that 
capacity cause damages (damnos) to third persons, by pro- 
ceeding in a manner contrary to law or failing in a duty 
prescribed by law, saving their right over (salvo o direito 
regressivo) against the causers of the damage. 



8 CIVIL CODE OP BRAZOi. 

Art. 16. Juridical persons of private law, are : 

I. Civil, religious, pious, moral, scientific or literary- 
societies, associations of public utility and endowments 
ifundagoes) . 

II. Mercantile societies. 

§ 1. The societies mentioned in no. 1 can only be consti- 
tuted by writing, inscribed in the general register (Art. 20, 
§ 2), and are governed by the provisions in regard to them 
in this Code, Special Part. 

§ 2. Mercantile societies shall continue to be governed 
by the provisions of the commercial laws. 

Art. 17. Juridical persons shall be represented, actively 
and passively, in their judicial and extra-judicial acts, by 
the persons designated in their respective by-laws, or, if not 
so designated, by their directors. 

Section II. Of the Civil Register of Juridical Persons. 

Art. 18. The legal existence of juridical persons of pri- 
vate law eommenees with the inscription of their contracts, 
constitutive acts, by-laws (estatutos) or agreements {com- 
promissos) in their peculiar register, regulated by special 
law, or with the authorization or approval of the Govern- 
ment, when required. 

Single Paragraph. The alterations which these acts 
undergo shall be noted in the register. 

Art. 19. The register shall declare : 

I. The denomination, the purposes, and the location 
(sede) of the association or endowment. 

II. The manner in which it is administered and repre- 
sented, actively and passively, judicially and extra- judi- 
cially. 

III. Whether its by-laws (estatutos), contract or agree- 



CIVIL SOCIETIES. 9 

ment, are subject to amendment in respect to its adminis- 
tration, and in what manner. 

IV. Whether the members are liable, or not, subsi- 
diarily, for the social obligations. 

V. The conditions of the extinction of the juridical per- 
son, and the disposition of its property in that event. 

Section III. Of Civil Societies or Associations. 

Art. 20. Juridical persons have an existence distinct 
from that of their members. 

§ 1. Societies, agencies or establishments of insurance, 
montepio, and savings-banks, except co-operative, cannot 
be constituted without previous authorization, and except 
professional and agricultural syndicates, legally organized. 

If these are to operate in the Federal District, or in more 
than one State, or in territories not constituted into States, 
the authorization shall be from the Federal Government ; if 
in one State only, from the Government of the latter. 

§ 2. The societies enumerated in Art. 16, which, for 
want of authorization or of registry, are not reputed juri- 
dical persons, cannot bring suit against their members, or 
against third persons ; but the latter may hold them respon 
sible for all their acts. 

Art. 21. The existence of the juridical person termi- 
nates : 

I. By its dissolution, determined upon among its mem 
bers, saving the rights of the minority and of third persons. 

II. By its dissolution, when the law so determines. 

III. By its dissolution by virtue of an act of Govern- 
ment which withdraws (que the casse) its authorization to 
operate, when the juridical person commits acts opposed to 
its ends or hurtful to the public welfare. 



10 CIVIL CODE OF BBAZIL. 

Art. 22. Upon the extinction of an association not 
formed for profit {de intuitos nao economicos), the by-laws 
of which make no provision in regard to the ultimate dispo- 
sition of its property, and whose members have adopted no 
efficacious resolution in respect thereto, the social property 
(patrimonio) shall devolve upon a Municipal, State or Fed- 
eral establishment of identical or similar purposes (fins). 

Single Paragraph. If there is no such establishment in 
the Municipality, State, Federal District, or Territory not 
yet constituted into a State, in which the association had 
its location (sede), the property shall devolve upon the 
Treasury of the State, of the Federal District, or of the 
Union. 

Art. 23. Upon the extinction of a society formed for 
profit (de fins economicos), the surplus of the social prop- 
erty shall be divided between the members or their heirs. 

Section IV. Of Endowments. 

Art. 24. In order to create an endowment (fundagdo), 
its founder shall make to it, by notarial act (escriptura) 
or will, a special donation of free property, specifying the 
purpose for which he destines it, and declaring, if he wishes, 
the manner of administering it. 

Art. 25. When insufficient to constitute an endowment, 
the property donated shall be converted into titles of the 
public debt, if the founder did not otherwise dispose, until 
it is so increased by the income or by new donations, as to 
provide sufficient capital. 

Art. 26. The Public Ministry (Ministerio Publico) of 
the State where situated, shall oversee the endowments. 

§ 1. If their activity shall extend to more than one 
State, this duty belongs to the Ministerio Publico of each of 
them. 



ENDOWMENTS. 11 

§ 2. The foregoing in regard to States is applied to the 
Federal District and to Territories not constituted into 
States. 

Art. 27. Those persons to whom the founder entrusts 
the application of the property shall, immediately upon 
having knowledge of the trust {encargo), formulate, in 
accordance with their instructions (Art. 24), the by-laws 
(estatutos) of the proposed endowment, and submit them 
at once for the approval of the eomipetent authority. 

Single Paragraph. If the latter should refuse approval, 
the competent judge in the State, Federal District or Teri'i- 
tories, shall supply it, subject to the legal recourses. 

Art. 28. In order to alter the by-laws of the endowment, 
it is necessary (mister) : 

I. That the amendment be approved by the absolute 
majority of those competent to direct and represent the 
endowment. 

II. That it do not conflict with its purposes. 

III. That it be approved by the competent authority. 
Art. 29. The minority outvoted (vencida) in the modi- 

fieation of the by-laws may, within one year, take action to 
nullify it, before the competent judge, saving the rights of 
third persons. 

Art. 30. If the endowment is found to be harmful 
{noci/va), or its maintenance impossible, or the term of its 
existence have expired, its property, unless otherwise pro- 
vided in the constitutive act or in the by-laws, shall be in- 
corporated into other endowments devoted to the same or 
similar purposes. 

Single Paragraph. Such inquest (verificagao) may be 
initiated judicially by the minority mentioned in Art. 29, 
or by the Public Ministry. 



12 CIVIL CODE OF BRAZIL. 

TITLE II. 

Of Civil Domicile. 

Art. 31. The civil domicile of a natural person is the 
place where he establishes his residence with definite pur- 
pose (ammo definitivo). 

Art. 32. If, however, a natural person has several resi- 
dences where he lives alternately, or various centers of 
habitual occupations, either one of the former or latter shall 
be considered his domicile. 

Art. 33. The domicile of a natural person, who has no 
habitual residence (Art. 32), or employs his life in voyages, 
without a central place of business, shall be held to be the 
place where he is found. 

Art. 34. The domicile is changed by transferring the 
residence with manifest intention of changing it. 

Single Paragraph. Proof of intention results from the 
declaration of the person who makes the change, to the 
municipal authorities (municipalidades) of the places 
which he leaves and to which he goes, or if he make no 
such declaration, from the change itself, with its accom- 
panying circumstances. 

Art. 35. The domicile of juridical persons is : ' 

I. Of the Union, the Federal District. 

II. Of the States, their respective Capitals. 

III. Of the Municipality, the place where the municipal 
administration functions. 

IV. Of all other juridical persons, the place where 
their respective directories and administrations function, or 
which they may select as special domicile in their by-laws 
or constitutive acts. 



DOMICILE. 13 

§ 1. When the right at issue (pleiteado) arose out of a 
fact which occurred, or out of an act done, or which is to 
have effect, outside of the Federal District, the Unioji shall 
be sued in the judicial district (secgdo) in which the fact 
occurred, or where the authority from which the act eman- 
ated, has its seat (sede), or where the act is to be executed. 

§ 2. In the States, the local legislation will be observed, 
with respect to causes of a local nature, arising out of facts 
occurred, or acts done by their authorities, or which are to 
be executed, outside of their respective capitals. 

§ 3. Where, however, a juridical person has several 
establishments in different places, each one shall be con- 
sidered its domicile as to the acts there performed. 

§ 4. If the administration or directory has its seat in a 
foreign country, the domicile of the juridical person, in 
respect to the obligations contracted by each of its agencies, 
shall be taken to be the place of the establishment, situated 
in Brazil, to which it corresponds. 

Art. 36. The domicile of incapables is that of their rep- 
resentatives. 

Single Paragraph. The married woman has for domicile 
that of her husband, unless she is divorced (Art. 315), or 
she is invested with the administration of the household 
(casal) Art. 251). 

Art. 37. Public officials are considered as domiciled 
where they exercise their functions, if not temporary, 
periodical or of simple commission, for, in these cases, they 
do not effect a change in the former domicile. 

Art. 38. The domicile of the soldier (militar) in active 
service is the place where he serves. 

Single Paragraph. Persons holding place in the navy 
have their domicile in the respective naval stations, or at 



14 CIVIL CODE OF BEAZIL. 

the place of the service which they may be discharging, on 
land. 

Art. 39. The domicile of officers and crews of the mei*- 
cbant marine is the place where the ship is matriculated. 

Art. 40. The prisoner, or person banished, has his 
domicile in the place where he is serving his sentence, or 
banishment. (Art. 80, § 2, No. 2, Federal Constitution.) 

Art. 41. The minister or diplomatic agent of Brazil, who, 
being sued in a foreign country, claims eltraterritoriality 
without designating where he has his domicile in this coun- 
try, may be sued in the Federal District, or in the last 
place in Brazilian territory where he had a domicile. 

Art. 42. The contracting parties in written contracts 
may specify a domicile where the rights and obligations 
resulting therefrom may be exercised and performed. 



BOOK II. 

OF PROPERTY (BENS) 



SINGLE TITLE. 
Of the Different Classes of Property. 

CHAPTER I. 

Of Property Considered in Itself. 
Section I. Of Immovable Property (Bens Immoveis). 

Art. 43. Immovable properties are : 

I. The soil with its surface, its natural accessories and 
appurtenances {adjacericias) , including the trees and pend- 
ing fruits, the aerial space and the subsoil. 



MOVABLES AND IMMOVABLES. 15 

II. Everything which a man incorporates permanently 
with the soil, as seeds thrown into the earth, or buildings 
and constructions, in such way that it cannot be removed 
without destruction, modification, fracture, or damage. 

III. Everything which the proprietor intentionally 
maintains on the immovable employed in its industrial 
exploration, beautifieation, or convenience (commodidade) . 

Art. 44. The following are considered immovables for 
legal effects : 

I. Real rights upon immovables, including agricultural 
pledges {penhor agricola), and the actions which secure 
them. 

II. Bonds (apolices) of the public debt burdened with 
the clause of inalienability. 

III. The right to the open succession. 

Art. 45. The property mentioned in Art. 43, no. Ill, 
may at any time become personalty (ser mobilizados). 

Art. 46. Materials temporarily separated from an es- 
tate, to be re-employed on it, do not lose their character as 
immovables. 

Section II. Of Movable Property (Bens Moveis). 

Art. 47 Movables are property capable of movement by 
itself, or of removal by outside (alheia) force. 

Art. 48. For legal effects the following are considered 
movables : 

I. Real rights upon movable objects and the correspond- 
ing actions. 

II. The rights arising from contract (de ohrigacao) and 
the respective actions. 

III. The rights of an author. 

Art. 49. Materials destined for some construction, so 



16 CIVIL CODE OP BRAZIL. 

long as they are not employed, retain their charactpr as 
movables. Those obtained by the demolition of some struc- 
ture (predio) reacquire that character. 

Section III. Of Fungible and Consumable Things. 

Art. 50. Fungible things are those movables which can, 
and non-fungible those which cannot, be substituted by 
others of the same kind, quality and quantity. 

Art. 51. Consumable things are those movables, the use 
of which implies the immediate destruction of their sub- 
stance; movables intended for sale {alienagdo) are also con- 
sidered as consumable. 

Section IV. Of Things Divisible and Indivisible. 

Art. 52. Divisible things are those which can be sep- 
arated into real and distinct portions, each forming a per- 
fect whole. 

Art. 53. Indivisible things are : 

I. Property which cannot be separated without altera- 
tion in its substance. 

II. Things which, although naturally divisible, are con- 
sidered indivisible by law, or at the will of the parties. 

Section V. Of Singular and Collective Things. 

Art. 54. Things simple or compound, material or imma- 
terial, are singular or collective : 

I. Singular, when, although joined (reunidas), they are 
considered by themselves, independently of the others. 

II. Collective, or universal, when they are viewed aggre- 
gated in a whole. 

Art. 55. In collective things, upon the disappearance of 



PRINCIPAU AND ACCESSORY THINGS. 17 

all the individuals, except one, the collectivity is considered 
as extinct. 

Art. 56. In the collectivity, the respective value is sub- 
rogated to the individual, and vice-versa. 

Art. 57. The patrimony and the inheritance constitute 
universal things, or universalities, and as such subsist, al- 
though they do not consist of material objects. 

CHAPTER II. 

Op Things (Bens) Reciprocally Considered. 

Art. 58. The principal is the thing which exists in itself 
(sobre si), abstractly or concretely. The accessory, is that 
the existence of which supposes that of the principal. 

Art. 59. Saving special disposition to the contrary, the 
accessory thing follows the principal. 

Art. 60. Fruits, products and incomes (rendimentos) 
belong to the class of accessory things. 

Art. 61. Accessories of the soil, are : 

I. The organic products of the surface. 

II. The minerals contained in the subsoil. 

III. Works of permanent adherence, made above or 
below the surface. 

Art. 62. All improvements (bemfeitorias) , whatever 
may be their value, are also considered as accessories of the 
thing, except: 

I. The painting with relation to the canvas. 

II. 'The sculpture with relation to the raw material. 

III. The writing or any other graphic work, in relation 
to the prime material which receives it (Art. 614). 

Art. 63. The improvements may be for pleasure (volup- 
tuarias), useful, or necessary. 

§ 1. Voluptuary are those of mere delight or recreation, 



18 CIVIL CODE OP BRAZIL. 

which do not increase the habitual use of the thing, al- 
though they render it more agreeable or may be of high 
value. 

§ 2. Useful are those which increase or facilitate the 
use of the thing. 

§ 3. Necessary are those which are intended to preserve 
the thing or prevent its deterioration. 

Art. 64. The betterments (melhoramentos) which the 
thing receives without the intervention of the proprietor, 
possessor or holder {detent or), are not considered as im- 
provements Cbemfeitorias) . 

CHAPTER III. 

Of Public and Private Property. 

Art. 65. Property of national dominion belonging to 
the Union, to the States, or to the Municipalities, is public. 
All other is private, to what person soever it may belong. 

Art. 66. Public property is : 

I. That of the common use of the people, such as the 
seas, rivers, roads, streets and parks (pragas). 

II. That of special use, such as the buildings or lands 
devoted to Federal, State or Municipal service or establish- 
ment. 

III. Dominical property, that is, property which con- 
stitutes the patrimony of the Union, of the States, or of 
the Municipalities, as the object of personal or real rights 
of each of these entities. 

Art. 67. The property mentioned in the preceding 
Article will only lose the inalienability which is peculiar 
to it, in the cases and manner which the law may prescribe. 

Art. 68. The common use of public property may be 
gratuitous, or for compensation, according to the laws of 



HOMESTEAD. 19 

the Union, of the States, or of the Municipality, to whose 
administration they belong. 

CHAPTER IV. 
Of Things Which Are Outside of Commerce. 

Art. 69. Things outside of commerce are such as are 
incapable of appropriation, and those legally inalienable. 

CHAPTER V. 

Of the Property op the Family. 

Art. 70. The heads (chefes) of families are permitted 
to designate an estate (predio) as the domicile of the fam- 
ily, with a clause that it shall be exempt from execution for 
debts, except those which arise from taxes (impostos) rela- 
tive to the estate itself. 

Single Paragraph. This exemption shaU continue as 
long as the married couple (conjuges) live and until the 
children attain their majority. 

Art. 71. For the exercise of this right it is necessary 
that the institutors in the act of institution shall have no 
debts the payment of which may be prejudiced thereby. 

Single Paragraph. The exemption relates to debts sub- 
sequent to the act, and not to those existing before, if it 
should be proven that the latter became uncollectible by 
virtue of the act of institution. 

Art. 72. The estate, upon the conditions above stated, 
cannot be put to any other use, or be alienated, without the 
consent of the interested persons or of their legal repre- 
sentatives. 

Art. 73. The institution shall be made by notarial act 
(escriptura) , transcribed in the register of immovables and 
published in the local press, and in default of this, in the 
press of the capital of the State. 



20 CIVIL CODE OF BRAZIL. 



BOOK III. 

OF JURIDICAL FACTS. 



PRELIMINARY DISPOSITIONS. 

Art. 74. In the acquisition of rights the following rules 
shall be observed : 

I. Rights are acquired through the act of the acquirer, 
or through another as intermediary. 

II. A person can acquire them for himself or for third 
persons. 

III. Rights completely acquired are called actual, and 
future those whose acquisition has not ceased to operate. 

Single Paragraph. The future right is called deferred, 
when its acquisition depends only upon the will of the sub- 
ject ; not deferred, when it is subordinate to facts or condi- 
tions which may defeat it {fallivies) . 

Art. 75. To every right corresponds an action, which 
secures it (o assegura). 

Art. 76. In order to bring (propor), or to contest an 
action, it is necessary to have a legitimate economic or moral 
interest. 

Single Paragraph. A moral interest only authorizes the 
action when it directly affects the author, or his family. 

Art. 77. The right perishes, when its object perishes. 

Art. 78. The object of the right is understood to perish : 

I. When it loses its essential qualities, or its economic 
value. 

II. When it is confounded with another, in such way 
that it cannot be distinguished. 



JURIDICAL ACTS. 21 

III. When it is in a place from which it cannot be with- 
drawn. 

Art. 79. If the thing perishes, by reason of a matter out- 
side the will of the owner, the latter shall have an action 
for damages against the person at faidt (o culpado). 

Art. 80. The owner shall have the like action for losses 
and damages against the person who, being charged with 
preserving the thing, lets it perish through negligence ; the 
latter, on his part, has a right of action over {acgao re- 
gresswOf) against the third party at fault {culpado). 

TITLE I. 
Of Juridical Acts. 

CHAPTER I. 

General Provisions. 

Art. 81. Every lawful act, which has for its immediate 
end to acquire, protect, transfer, modify or extinguish 
rights, is called a juridical act. 

Art. 82. The validity of a juridical act requires a cap- 
able agent (Art. 145, no. I), a lawful object and the form 
prescribed or not forbidden by law (Arts. 129, 130 and 
145). 

Art. 83. The incapacity of one of the parties cannot be 
invoked by the other to his own advantage, unless the 
object of the right or of the common obligation is indivis- 
ible. 

Art. 84. Persons absolutely incapable shall be repre- 
sented by their parents, tutors, or curators in all juridical 
acts; those relatively incapable by the persons and in the 
acts which this Code determines. 



22 CIVIL CODE OP BRAZIL. 

Art. 85. In declarations of will (vontade), the intention 
shall be observed rather than the literal sense of the lan- 
guage. 

CHAPTER II. 

Op the Defects of Juridical Acts. 

Section I. Of Error or Ignorance. 

Art. 86. Juridical acts may be annulled, when the dec- 
laration of will emanates from substantial error. 

Art. 87. Substantial error is considered to be that which 
affects the nature of the act, the principal object of the 
declaration, or some of the qualities essential to it. 

Art. 88. What is said with respect to essential qualities 
of the person, to whom the declaration of will refers, is 
also held as substantial error. 

Art. 89. The erroneous expression (transmissao) of the 
will (vontade) by an instrument, or through an interme- 
diate (interposta) person, can be alleged as grounds for 
nullity in the same cases as the direct declaration. 

Art. 90. A false cause only vitiates the act, when it is • 
expressed as the determining reason or in the form of a 
condition. 

Art. 91. Error in the indication of the person, or thing, 
to which the declaration of will refers, will not vitiate the 
act, when, by its context and by the circumstances, the 
thing or person intended, can be identified. 

Section II. Of Deceit {Dolo). 

Art. 92. Juridical acts may be annulled for deceit 
{dolo), when this was their cause (a sua causa). 



NULLITY COERCION. 23 

Art. 93. Accidental deceit obliges only to the satisfac- 
tion of the losses and damages. The deceit is accidental, 
when the act would have been done in spite of it, although 
in another manner. 

Art. 94. In bilateral acts, the intentional silence of one 
of the parties in respect to a fact or quality of which the 
other party is ignorant, constitutes a deceitful {dolosa} 
omission, if it is proven that without it the contract would 
not have been made. 

Art. 95. The act may also be annulled for the deceit of a 
third person, if one of the parties knew it. 

Art. 96. The deceit of the representative of one of the 
parties only obliges the principal to respond civilly to the 
extent of the profits he received. 

Art. 97. If both parties acted with deceit, neither of 
them can allege it, to annul the act, or to claim indemnity. 

Section III. Of Coercion (Coacgao). 

Art. 98. Coercion (coacgdo), in order to vitiate the 
manifestation of the will, must be such that it induces in 
the person affected by it (paciente) a founded fear of in- 
jury to his person, to his family, or to his property, immi- 
nent and equal, at least, to that which he fears from the 
act extorted. 

Art. 99. In determining coercion, the sex, age, condi- 
tion, health, temperament of the patient, and all other cir- 
cumstances, which may bear upon its gravity, will be taken 
into account. 

Art. 100. The threat of the normal exercise of a right, 
or simple reverential fear, is not considered as coercion. 

Art. 101. Coercion vitiates the aot, even when it is 
exercised by a third person. 



24 CIVIL CODE OF BRAZIL. 

§ 1. If the coercion exercised by a third person was 
previously known to the party whom it benefits, the latter 
shall be jointly liable with the former for all the losses and 
damages. 

§ 2. If the party prejudiced by the annuUment of the 
act, did not know of the coercion exercised by the third 
person, the latter only will respond for the losses and 
damages. 

Section IV. Of Simulation. 

Art. 102. Simulation in juridical acts in general exists : 

I. "When they pretend (apparentarem) to confer or to 
transmit rights to persons other than those to whom really 
they are conferred or transmitted. 

II. When they contain a declaration, admission, condi- 
tion, or clause which is not true. 

III. When private instruments are antedated or post- 
dated. 

Art. 103. Simulation will not be considered a defect in 
any of the eases of the preceding Article, when there was 
no intention to prejudice third persons, or to violate a pro- 
vision of the law. 

Art. 104. Where there has been an intention to pre 
judice third persons, or to infringe a precept of law, the 
contracting parties can allege or demand nothing in suit 
(em juigo) in regard to the simulation of the act in a law- 
suit (litigio) by one of them against the other, or against 
third persons. 

Art. 105. Third persons injured by the simulation, or 
the representatives of the public power, can demand the 
nullity of the simulated acts, on behalf of (a hem da) the 
law, or of the public treasury (Fazetida). 



FRAUDS AGAINST CREDITORS. 25 

Section V. Of Fraud Against Creditors. 

Art. 106. Acts of gratuitous conveyance of property', 
or remission of debt, when made by a debtor already in- 
solvent, or who is thereby reduced to insolvency, may be 
annulled by the chirographic* creditors as injurious 
(lesivos) to their rights (Art. 109). 

Single Paragraph. Only creditors who were such at the 
time of these acts, may bring suit to annul them. 

Art. 107. Onerous contracts of the insolvent debtor may 
also be annulled, when his insolvency was notorious, or 
there was reason for it to be known to the other party to 
such contract. 

Art. 108. If the acquirer of the property of the insol- 
vent debtor has not yet paid the price, and this is approxi- 
mately the current price, he shall release (desohrigar se) 
himself by depositing it in court {em jidzo), and citing all 
interested parties by edict. 

Art. 109. The action, in the cases of Arts. 106 and 107, 
may be brought against the insolvent debtor, the person 
with whom he made the stipulation considered fraudulent, 
or third persons acquiring the property through bad faith. 

Art. 110. The chirographic creditor who receives from 
the insolvent debtor the payment of a debt not yet due, will 
be obliged to restore to the estate {massa) what he has re- 
ceived. 

Art. 111. The securities (garantias) for debts which the 
insolvent debtor has given to any creditor, are presumed 
fraudulent (fraudatorias) . 

Art. 112. The ordinary transactions (negocios) indis- 



*A credor chirographario is one whose credit is represented by 
a private writing evidencing the debt, and not secured by mortgage. 



26 CIVIL CODE OP BRAZIL. 

pensable to the maintenance of the mercantile, agricultural 
or industrial establishment of the debtor, are, however, pre- 
sumed to be in good faith and valid. 

Art. 113. When fraudulent acts are annulled, the result- 
ing advantage will revert to the benefit of the estate 
(massa). 

Single Paragraph. If the acts revoked had for their 
only object to create preferential rights, by means of a 
mortgage, antichresis, or pledge, their nullity will involve 
only the annulment of the attempted (ajustada) prefer- 
ence. 

CHAPTER III. 
Of the Conditions (Mod alidades) op Juridical Acts. 

Art. 114. The clause which subordinates the effect of 
the juridical act to a future and uncertain event, is con- 
sidered a condition. 

Art. 115. All conditions, which the law does not ex- 
pressly forbid, are, in general, lawful. Among forbidden 
conditions are included those which deprive the act of all 
effect, or subject it to the will of one of the parties. 

Art. 116. Conditions physically impossible, as well as 
those not to do {de ndo fazer) an impossible thing, are held 
as non-existent. Those juridically impossible invalidate 
the acts subordinated to them. 

Art. 117. The clause which does not depend {nao derive) 
exclusively upon the will of the parties, but arises (decorra) 
necessarily from the nature of the right upon which it de- 
pends (a que accede), is not considered a condition. 

Art. 118. Where the efficacy of the right is subordinated 
to a precedent {suspensiva) condition, so long as this is not 
fulfilled (se tmo verificar), the right dependent upon it (a 
que elle visa) will not be held as acquired. 



CONDITIONS OP CONTRACTS. 27 

Art. 119. If the condition is subsequent (resolutiva), 
so long as this is not fulfilled, the juridical act will remain 
in effect, and the right established by it may be exercised 
from the moment of the act ; but, when the condition is ful- 
filled, the right opposed to it is extinguished for all effects. 

Single Paragraph. The resolutive condition of the obliga- 
tion may be express or tacit ; in the first case it is operative 
of its own force (de plena direito), and in the second 
through judicial determination {interpellagdo) . 

Art. 120. In respect to its juridical effects, the conditioji 
is considered fulfilled when its performance {implemento) 
is maliciously prevented by the party to whom it is un- 
favorable. 

On the contrary, the condition is considered not fulfilled 
which is maliciously carried into effect by the party bene- 
fited by its performance. 

Art. 121. The party entitled (o titular do) to an eventual 
right in case of suspensive condition, is permitted to exer- 
cise the acts designed to preserve it. 

Art. 122. If one disposes of a thing upon suspensive 
condition, and, pending this, makes new dispositions in 
regard to it, they shall be without effect, upon the fulfill- 
ment of the condition, if they are incompatible with it. 

Art. 123. The initial term suspends the exercise, but 
not the acquisition of the right. 

Art. 124. To the initial term are applied the provisions 
of Arts. 121 and 122, in regard to suspensive conditions, 
and to the final term the provisions of Art. 119 in respect 
to resolutive conditions. 

Art. 125. Saving provisions to the contrary, periods of 
time {prazos) are computed by excluding the day of com- 
mencement, and including that of maturity. 



28 CIVIL CODE OP BRAZIL. 

§ 1. If maturity should fall on a holiday {dda feriado), 
the time will be considered as extended until the following 
legal day (dm util). 

§ 2. The middle of the month (meiado) is considered, 
in any month, its fifteenth day. 

§ 3. A month is considered the successive period of 
thirty completed days. 

§ 4. Periods determined by hours are counted from 
minute to minute. 

Art. 126. In wills (testamentos) the period (prazo) is 
presumed in favor of the heir, and, in contracts, in favor 
of the debtor, unless, in respect to the latter, it appears 
from the tenor of the instrument or from the circum- 
stances, that it was intended for the benefit of the creditor, 
or of both the contracting parties. 

Art. 127. Acts between living persons {ados entre 
vivos), without time (prazo), are performable at once, 
unless the performance is to be done at some other place 
or depends upon time. 

Art. 128. An annexed charge (encargo) does not sus- 
pend the acquisition or the exercise of the right, except 
when expressly imposed, in the act, by the grantor {dis- 
ponente), as a suspensive condition. 

CHAPTER IV. 

Of the Form of Juridical Acts and Their Proof. 

Art. 129. The validity of declarations of will {vontade) 
do not depend upon a special form, except when the law 
expressly requires it (Art. 82). 

Art. 130. The act is not valid which is not executed 



FOKMS OF JURIDICAL ACTS. 29 

(revestir) in the special form required by law (Art. 82), 
except when the law provides a different penalty for the 
omission of the required form. 

Art. 131. Declarations contained in signed documents 
are presumed to be true with respect to the signers. 

Single Paragraph. Where such enunciative declara- 
tions have no direct relation, however, with the principal 
provisions, or with the legitimacy of the parties, they do 
not relieve the parties interested in their truth from the 
burden of proving them. 

Art. 132. The consent (annuencia), or the authoriza- 
tion, of another person, which is necessary to the validity 
of an act, shall be proved in the same way as the act, and 
shall be proven, whenever it is possible, by the instrument 
itself. 

Art. 133. "Where a contract is executed with a clause to 
the effect that it shall not be valid without a public instru- 
ment, this is of the substance of the act. 

Art. 134. A notarial act {escriptura puhlica) is, more- 
over, of the substance of the act : 

I. In antenuptial agreements and in adoptions. 

II. In contracts constituting or transferring real rights 
upon immovables of a value superior to one conto de reis 
(1,000,000 reis or 10,000$000), except in agricultural 
pledges. 

Art. 135. A private instrument, made and signed, or 
only signed, by one who has the free disposition and admin- 
istration of his property, and subscribed by two witnesses, 
proves conventional obligations of any value. But its 
effects, as well as those of the cession, are not operative, in 
respect to third persons (Art. 1067), before transcription 
in the public register. 



30 CIVIL CODE OP BRAZIL. 

Single Paragraph. Proof of a private instrument may 
be supplied by other proofs of a legal character. 

Art. 136. Juridical acts, for which a special form is not 
required, may be proven by means of : 

I. Admissions {confissao). 

II. Acts in the records of a court (processados em 

juizo) . 

III. Public or private documents. 

IV. Witnesses. 

V. Presumption. 

VI. Examinations and inspections (vistorias). 

VII. Arbitrament. 

Art. 137. Textual certified copies "of any judicial record 
(pega), of the record (protocollo) of hearings {audien- 
cias), or of any other book in charge of the clerk (escHvao), 
if made (extrahidas) by him or under his superintendence, 
and subscribed by him, as well as the copies of court rec- 
ord {traslados de autos), when compared by another clerk, 
shall be evidence the same as the originals. 

Art. 138. The same probative force is had by the copies 
(traslados) and certified copies (certidoes), made by a pub- 
lic official, of instruments or documents entered (langedos) 
in their records (notas) . 

Art. 139. Copies (traslados) though not yet compared, 
and certified copies (certidoes), shall be considered public 
instruments, if their originals have been produced in suit 
as proof of any act. 

Art. 140. "Writings of obligation drawn up in a foreign 
language shall be translated into Portuguese, in order to 
have legal effect in this country. 

Art. 141. Except in express cases, proof exclusively by 



NULLITY OP JURIDICAL ACTS. 31 

witnesses is only admitted in contracts the value of which 
does not exceed one conto de reis (10,000$000). 

Single Paragraph. Whatever be the value of the con- 
tract, proof by witnesses is admissible as subsidiary or 
complemen'tary to proof in writing. 

Art. 142. The following cannot be admitted as wit- 
nesses : 

I. Insane persons of all kinds. 

II. The blind and deaf, when the knowledge of the fact 
to be proven depends upon the senses which they lack. 

III. Minors under 16 years. 

IV. The party interested in the object of the litigation, 
and also the ascendants and descendants, or collaterals, unto 
the third degree, by consanguinity or aflSnity, of any of the 
parties. 

V. Spouses. 

Art. 143. Ascendants by consanguinity or affinity may 
be admitted as witnesses in questions involving the birth or 
the death of children. 

Art. 144. No one can be obliged to depose regarding 
facts which, by reason of his status or profession, he should 
keep secret. 

CHAPTER V. 

Of Nullity. 

Art. 145. A juridical act is void {nulo) : 

I. When performed by a person absolutely incapable 
(Art. 5). 

II. When its object is illicit or impossible. 

III. When it does not observe the form prescribed by 
law. 

IV. When some solemnity which the law regards as 
essential to its validity is omitted. 



32 CIVIL CODE OF BRAZIL. 

V. When the law expressly declares it void or denies it 
effect. 

Art. 146. The nullity described in the preceding Article 
may be alleged by any interested person, or by the Public 
Ministry, whenever it may properly intervene. 

Single Paragraph. It must be declared by the judge, 
when he has cognizance of the act or of its effects and finds 
them proven, and he is not permitted to suppress them, 
even at the request of the parties. 

Art. 147. A juridical act may be annulled : 

I. For the relative incapacity of the agent (Art. 6). 

II. For the defect (vicio) resulting from error, deceit 
idolo), coercion, simulation, or fraud {fraude) (Arts. 86- 
113). 

Art. 148. A voidable act may be ratified by the parties, 
saving the rights of third persons. 

The ratification relates back (retroage) to the date of 
the act. 

Art. 149. The act of ratification must contain the sub- 
stance of the obligation ratified and the expressed will to 
ratify it. 

Art. 150. Express ratification is excused when the obl'n 
gation has been already partly performed by the debtor, ■ 
with knowledge of the defect which affected it. 

Art. 151. Express ratification, or the voluntary per- 
formance (execuQdo) of the voidable obligation, in the 
terms of Articles 148 to 150, implies the waiver {renuncia) 
of all actions or defenses (excepgoes) which the debtor 
might have against the act. 

Art. 152. The nullities of Art. 147 have no effect before 
they are declared by judgment {sentenga), nor can they be 



NOVELTY OP JURIDICAL ACTS. 33 

declared ex officio. Only the interested parties may plead 
them, and those only who plead them can take advantage 
of them, except in case of joint interest (soUdariedade) or 
indivisibility. 

Single Paragraph. The nullity of the instrument does 
not involve that of the act, provided that the latter can be 
proven by other means. 

Art. 153. The partial nullity of an act does not preju- 
dice it in the valid part, if this is separable. The nullity 
of the principal obligation implies that of the accessory 
obligations, but the nullity of the latter does not involve 
that of the principal obligation. 

Art. 154. Obligations contracted by minors between 16 
and 21 years are voidable (Arts. 6 and 84) when they result 
from acts done by them : 

I. Without the authorization of their legitimate repre- 
sentatives (Art. 84). 

II. Without the assistance of the curator, where he 
should intervene in them. 

Art. 155. The minor, between 16 and 21 years, can not 
invoke his age to relieve himself of an obligation, if he 
deceitfully (dolosamente) concealed it when asked by the 
other party, or if, in the act of creating the obligation, he 
veluntarily declared himself of age {maior). 

Art. 156. The minor between 16 and 21 years is equally 
liable as one of full age {equipara-se ao maior) in respect 
to obligations resulting from illicit acts of which he may be 
guilty (culpado). 

Art. 157. No one can recover what he has paid to an 
incapable on account of an annulled obligation, unless he 
proves that the amount paid resulted to the benefit of the 
latter. 



34 CIVIL CODE OF BEAZIL. 

Art. 158. When an act is annulled the parties shall be 
restored to the condition in which they were previously; 
and if it is not possible to so restore them, they shall be 
indemnified with an equivalent. 

TITLE II. 
Of Illicit Acts. 

Art. 159. Whoever, by voluntary act or omission, negli- 
gence, or imprudence violates a right, or causes prejudice 
to another, is obliged to repair the damage. 

The proof {verificagao) of the fault {culpa) and the 
measure of damages {avaliagao de responsibilidade) , are 
governed by the provisions of this Code, Arts. 1518 to 1532 
and 1537 to 1553. 

Art. 160. The following do not constitute illicit acts : 

I. Those done in legitimate defense or in the regular 
exercise of a recognized right. 

II. The deterioration or destruction of the property of 
another in order to remove an imminent danger (Arts. 1519 
and 1520). 

Single Paragraph. In the latter case the act will be 
legitimate only when the circumstances render it absolutely 
necessary, not exceeding the limits of what is indispensabk 
for the removal of the danger. 

TITLE III. 
Of Prescription. 

CHAPTER I. 

General Dispositions. 

Art. 161. The waiver (renuncia) of prescription may 
be express or tacit, and it will only be effective (so valerd) 



PRESCRIPTION. 35 

when made, without prejudice of third persons, after the 
prescription is consummated. 

The waiver is tacit when it is presumed from acts {factos) 
of the interested party incompatible with the prescription. 

Art. 162. Prescription may be pleaded, in whatever 
stage of the cause {em qnalquer instancia), by the party 
whom it benefits. 

Art. 163. Juridical persons are subject to the effects of 
prescription and can invoke it whenever it is to their benefit. 

Art. 164. Persons whom the law deprives of the admin- 
istration of their own property have an action over {regres- 
siva) against their legal representatives when the latter, 
through deceit (dolo) or negligence allow prescription to 
run {derem causa a prescripgao). 

Art. 165. Prescription initiated against a person con- 
tinues to run against his heir. 

Art. 166. The judge cannot take cognizance of the pre- 
scription of patrimonial rights if it is not invoked by the 
parties. 

Art. 167. Accessory rights prescribe with the principal. 

CHAPTER II. 

Op the Causes Which Impede or Suspend Prescription. 
Art. 168. Prescription does not run : 

I. Between spouses (conjuges) , during the existence of 
the marriage. 

II. Between ascendants and descendants, during the 
parental power {patrio poder). 

III. Between those under guardianship or curatorship 
and their tutors or curators, during the guardianship or 
curatorship. 



36 CIVIL CODE OP BRAZIL. 

IV. In favor of the pledgee creditor (credor pignorx- 
ticio), of the mandatory, and, in general, of persons in simi- 
lar relations (que Ihes sdo equiparadas) , against the deposi- 
tor, the debtor, the principal (mandante) and the persons 
represented, or their heirs, in respect to the rights and obli- 
gations relative to the property entrusted to their care. 

Art. 169. Prescription also does not run : 

I. Against the incapables mentioned in Art. 5. 

II. Against those absent from Brazil in the public serv- 
ice of the Union, of the States, or of the Municipalities. 

III. Against those who are serving in the national Navy 
or Army, in time of war. 

Art. 170. Likewise it does not run : 

I. Pending a suspensive condition. 

II. Before maturity. 

III. Pending the action of eviction. 

Art. 171. If prescription is suspended in favor of one of 
the joint creditors (solidarios), it only benefits the others 
if the object of the obligation is indivisible. 

CHAPTER III. 

Op the Causes Which Interrupt Prescription. 

Art. 172. Prescription is interrupted : 

I. By personal citation made to the debtor, although 
ordered by an incompetent judge. 

II. By protest, in the conditions of the preeedijig 
Number. 

III. By the presentation of the evidence of debt {tituio 
de credit o) in the inventory suit or in the concourse of 
creditors. 

IV. By any judicial act which constitutes the debtor in 
default {mora). 



INTERRUPTION OP PRESCRIPTION. 37 

V. By any unequivocal act, although extra-judicial, 
which implies the acknowledgement {reconJiecimento) of 
the right by the debtor. 

Art. 173. The interrupted prescription begins to run 
again from the date of the act which interrupted it, or 
from the end {ultimo) of the proceeding (processo) w 
interrupt it. 

Art. 174. In each of the cases of Art. 172, the interrup- 
tion may be initiated {promovida) : 

I. By the owner {propria titular) of the right subject 
to {em via de) prescription. 

II. By his legal representative. 

III. By a third person having a legitimate interest. 

Art. 175. Prescription is not interrupted by a citation 
void because of defect of form, or adjudged invalid {par 
circumducta) , or because the instance, or the action, is per- 
emptory. 

Art. 176. The interruption of prescription by one cred- 
itor does not benefit the others. Likewise the interruption 
occasioned {operada) against a co-debtor, or his heir, does 
not prejudice the other co-debtors. 

§ 1. The interruption, however, started {aherta) by one 
of the joint creditors benefits the other; also the interrup- 
tion effected against the joint debtor involves the others 
and their heirs. 

§ 2. The interruption occasioned against one of the heirs 
of a joint debtor does not prejudice the other heirs or 
debtors, except in respect to indivisible obligations and 
rights. 

§ 3. The interruption produced against the principal 
debtor prejudices the surety. 



38 CIVIL CODE OF BRAZIL. 

CHAPTER IV. 

Of the Periods of Prescription. 

Art. 177. iPersonal actions prescribe ordinarily in thirty 
years, real actions in ten between persons present, and, 
between those absent, in twenty, counted from the date on 
which they might have been brought (propostas) . 

Art. 178. The following prescribe : 

§ 1. In ten days, counted from the marriage, the action 
of the husband to annul the marriage with the wife already 
deflowered (Arts. 218, 219, no. IV and 220). 

§ 2. In fifteen days, counted from the delivery (tra- 
digao) of the thing, the action for abatement of the price 
of the movable thing received with a redhibitory defect, or 
to rescind the contract and recover the price paid, with 
losses and damages. 

§ 3. In two months, counted from the birth, if the hus- 
band were present, the action of the latter to contest the 
legitimacy of the child of his wife (Arts. 338 and 344). 

§ 4. In three months : 

I. The action in the preceding paragraph, if the hus- 
band was absent, or the birth was concealed from him ; the 
time counted from the day of his return to the conjugal 
home, in the first case, and from the date of the knowledge 
of the fact, in the second. 

II. The action of the father, tutor, or curator to annul 
the marriage of the son, pupil, or ward, contracted without 
the consent of the former, or without it being granted {sup- 
primento) by the judge; the time being counted from the 
day when they had knowledge of the marriage (Arts. 180, 
no. XI, 209 and 213). 



PERIODS OP PRESCRIPTION. 39 

§ 5. In six months : 

I. The action of the spouse coerced to annul the mar- 
riage; the time being counted from the day when the co- 
ercion ceased (Arts. 183, no. IX and 209). 

II. The action to annul the marriage of one incapable 
of consenting, brought by the latter when he becomes 
capable, by his legal representatives, or by his heirs; the 
time counted from the day when the incapacity ceased, in 
the first case ; from the marriage, in the second, and, in the 
third, from the death of the incapable, when the death oc- 
curred during incapacity (Art. 212). 

III. The action to annul the marriage of a female minor 
under 16 years and of a male minor under 18 years; the 
period being counted from the day that the minor attains 
such age, if the action is brought by the minor, and from 
the date of the marriage, when brought by his legal repre- 
sentatives (Arts. 213 to 216), or by the relatives {parentes) 
designated in Art. 190. 

IV. The action for abatement of the price of an im- 
movable received with a redhibitory defect, or to rescind a 
reciprocal {commutativa) contract, and recover the price 
paid, with losses and damages; the time counted from the 
delivery (tradigdo) of the thing. 

V. The action of hotel and inn-keepers, or furnishers 
of provisions (viveres) destined far consumption in the es- 
tablishment itself, for the price of the accommodations 
(hospedagem) or of the provisions furnished; the time 
counted from the last payment. 

§ 6. In one year : 

I. The action of the donor to revoke the gift ; the time 
counted from the day in which he knew of the fact which 
authorizes him to revoke it (Arts. 1181 to 1187). 

II. The action of the assured against the insurer and 
vice-versa, if the fact which authorizes it occurred in the 



40 CIVIL CODE OF BRAZIL. 

country (paiz), the time counted from the day that the 
interested party had knowledge of such fact (Art. 178, § 7, 
No. V). 

III. The action of the child to disencumber and recovei- 
(desobrigar e reivindicar) immovables belonging to him, 
alienated or encumbered by the father outside of the cases 
expressly legal; the time counted from the day on which 
he attains his majority (Arts. 386 and 388, no. I). 

IV. The action of the heirs of the child, in the case of 
the preceding Number, the time being counted from his 
death, if the child died a minor ; and also that of his legal 
representative, if the father lost the parental power {patrio 
poder) , the time running from the data on which he lost it 
(Arts. 386 and 388, nos. II and III). 

V. The action to annul the partition (partilha) ; the 
time counted from the date when the judgment of partition 
became final (Art. 1805). 

VI. The action of professors, masters or instructors of 
science, literature or art, for lessons which they have 
given, payable by periods not exceeding one month, the 
time counted from the end of each matured period. (See § 7, 
No. Ill, infra). 

VII. The action of the owners of boarding schools {casn 
de pensao) and places of education or teaching, for the 
tuition fees (prestagoes) of their boarding-scholars (pen- 
sionistas), pupils or apprentices; the time counted from 
the maturity of each one. 

VIII. The action of notaries (tabelliaes) and other 
court officials, door-keepers and clerks (potieiros do aiidi- 
torio e escrivaes), for the costs of the acts which they per- 
form; the time counted from the date of those which are 
due and unpaid. 

IX. The action of physicians, surgeons or pharmacists, 
for their visits, operations or medicines ; the time counted 
from the date of the last service rendered. 



PERIODS OP PRESCRIPTION. 41 

X. The action of lawyers, solicitors, curators, experts 
(peritos) and judicial procurators, for the payment of 
their fees (honorarios) ; the time counted from the maturity 
of the contract, from the final decision of the cause, or 
from the revocation of the mandate. 

XI. The action of the proprietor of the diminished 
(desfalcado) estate against the owner of the estate aug- 
mented by avulsion, in the terms of Art. 541 ; the prescrip- 
tive term counted from the day when the thing occurred. 

XII. The action of the heirs of the child to prove the 
legitimacy of the filiation ; the term counted from the date 
of his death if he died yet a minor or incapable. 

XIII. The action of an adopted person to be released 
idesligar-se) from the adoption, made while he was a minor 
or was under interdict; the time counted from the day 
when the minority or interdict ceased. 

§ 7. In two years : 

I. The action of the spouse (conjuge) to annul the mar- 
riage in the cases of Art. 219, nos. I, II, and III ; the time 
counted from the date of the celebration of the marriage ; 
and from the date of the taking effect (execugdo) of this 
Code for marriages previously celebrated. 

II. The action of creditors for a debt less than one 
hundred milreis (100$000), except those contemplated in 
nos. VI to VIII of the preceding paragraph; the time 
counted from their respective maturity, if this is pre-fixed, 
and, in the contrary case, from the day when it was con- 
tracted. 

III. The action of professors, masters and instructois 
of science, literature or art, whose fees are stipulated in 
periods greater than one month ; the time counted from tJie 
maturity of the last installment (see § 5, no. VI, supra). 

IV. The action of engineers, architects, surveyors and 
stereometrists, for their fees; the time counted from the 
termination of their work. 



42 CIVIL CODE OF BRAZIL. 

V. The action of the assured against the insurer and 
vice- versa, if the fact which authorizes it occurred outside 
Brazil; the time counted from the day the interested party- 
knew of this fact (Art. 178, § 6, no. II). 

VI. The action of the spouse or his necessary heirs to 
annul the gift made by the adulterous spouse to his accom- 
plice j the terra counted from the date of the dissolution of 
the conjugal society (Art. 1177). 

VII. The action of the husband or of his heirs to annul 
the acts of the wife done without his consent, or without 
the supplying thereof by the judge ; the time counted from 
the day of the dissolution of the conjugal society (Arts. 
252 and 315). 

§ 8. In three years : 

The action of the vendor to redeem (resgatar) the immov- 
able sold ; the time counted from the date of the instrument, 
when a shorter period is not fixed in the contract (Art. 
1141). 

§ 9. In four years : 

I. Counted from the dissolution of the conjugal society, 
the action of the wife: 

a) To disencumber or recover the immovables of the 
household {casal), when the husband encumbered or alien- 
ated them without the wife's consent {sem outorga uxoria), 
or the supplial of it by the judge (Arts. 235 and 237). 

b) To annul the bonds given and the gifts made by the 
husband outside of the legal cases (Arts. 235, nos. Ill and 
IV, 236). 

c) To recover (rehaver) from the husband the dowry 
(Art. 300), or her other properties entrusted to his marital 
administration (Arts. 233, no. II, 263, nos. VIII and IX, 
269, 289, no. I, 300 and 311, no. III). 

II. The action of the heirs of the wife, in the cases of 



PERIODS OF PRESCRIPTION. 43 

letters a, b and c of the preceding Number, when she died 
without bringing the action there secured to her; the time 
counted from the date of her death (Arts. 239, 295, no. IT, 
300and311, no. III). 

III. The action of the wife or her heirs to disencumber 
or recover the dotal properties alienated or encumbered by 
the husband ; the term counted from the dissolution of the 
conjugal society (Arts. 293 to 296). 

IV. The action of the interested party to enforce {plei- 
tear) the exclusion of the heir (Arts. 1595 and 1596), or to 
prove the cause of his disenheritance (Arts. 1741 to 1745), 
as well as the action of the disenherited to contest {im- 
pugnar) it; the term counted from the opening of the suc- 
cession. 

V. The action to annul or rescind contracts, for which 
no shorter term had been established ; the time counted : 

a) In case of coercion, from the day when it ceased. 

b) In case of error, deceit (dolo), simulation or fraud 
(fraude), from the day when the act or contract was done 
or made (se realizar). 

c) In respect to the acts of incapables, from the day 
when the incapacity ceases. 

VI. The action of the natural child to set aside {im- 
pugnar) the acknowledgment; the time counted from the 
day he attained his majority or was emancipated. 

§ 10. In five years : 

I. The payment (prestagoes) of alimentary pensions. 

II. The payment (prestagoes) of temporary or life in- 
comes (rendas). 

III. Interest (juros), or any other accessory presta- 
tions payable annually, or in shorter periods. 

IV. The rentals (alugueres) of rastic or urban estates 
(pr'edio). 



44 CIVIL CODE OF BEAZIL. 

Y. The action of servants, operatives and day-laborers, 
for the payment of their wages. 

"VT. The passive debts of the Union, of the States and 
of the Municipalities, as also any and every action against 
the Federal, State or Municipal Treasury ; the term of this 
prescription running from the date of the act or fact from 
which such action originated. 

The terms of the preceding numbers shall be counted 
from the day when each prestation, interest, rent or wage 
was demandable. 

VII. Civil actions for violation {offensa) of the rights 
of the author; the term counted from the date of the in- 
fringement {contrafacgao) . 

VIII. The right to bring a rescissory action. 

IX. The action for injury (offensa) or damage caused 
to the right of property; the term counted from the day 
when such injury or damage was done. 

Art. 179. The cases of prescription not provided for in 
this Code shall be governed, in respect to the time (prazo), 
by Art. 177. 



SPECIAL PART 



BOOK I. 

OF THE RIGHTS OF FAMILY. 



TITLE I. 
Of Marriage. 

CHAPTER I. 

Of the Preliminary Formalities. 

Art. 180. The habilitation for marriage is made before 
the official of the civil register, upon the presentation of 
the following documents : 

I. Certificate of age or equivalent proof. 

II. Declaration of status, of domicile and of the present 
residence of the contracting parties, and of their parents 
if they are known. 

III. Authorization from the persons upon whom they 
are legally dependent, or the judicial act supplying it (Arts. 
183, no. XI, 188 and 196). 

IV. Declaration of two witnesses of lawful age, rela- 
tives or strangers, testifying that they know the parties 
and that no impediment exists which impedes their mar- 
riage. 

V. Certificate of the death of a deceased spouse or of the 
annulment of the previous marriage. 

Single Paragraph. If either of the contracting parties 
has resided for the greater part of the last year in another 

45 



46 CIVIL CODE OF BRAZIL. 

State, he shall present proof that he left it without impedi- 
ment to marriage, or that an existing impediment has 
ceased. 

Art. 181. Upon view of these documents presented by 
the parties, or their attorneys-in-fact (procuradores) , the 
official of the register shall issue the bans (proclamas) of 
marriage, by means of an edict (edital), which shall be 
affixed during fifteen days in a visible place of the building 
where marriages are celebrated, and it shall be published 
in the press, if there be any (Art. 182, Single Paragraph). 

§ 1. If, at the expiration of this period, no one appears 
to interpose an impediment, or if he does not know of any 
of those which he is bound to declare ex officio, the official 
of the register shall certify to the parties (pretendentes) 
that they are habilitated to marry within the next three 
months (Art. 192). 

§ 2. If the parties (nubentes) reside in different dis- 
tricts of the Civil Registry, the publication of the edicts 
shall be made in each of them. 

Art. 182. The registry of the edicts shall be made in the 
records (cartorio) of the official who published them, a cer- 
tificate being issued to whoever requests it. 

Single Paragraph. The competent authority, in case of 
urgency, may dispensate the publication, provided that the 
documents required by Art. 180 are presented to him. 

CHAPTER II. 

Op Impediments. 

Art. 183. These cannot marry : 

I, Ascendants with descendants, whether of legitimate 
or illegitimate, natural or civil, relationship. 



IMPEDIMENTS TO MARRIAGE. 47 

II. Affines in right line, whether by legitimate or ille- 
gitimate bond. 

III. An adopting parent (adoptante) with the spouse 
of the adopted child, and the adopted with the spouse of 
the adopter (Art. 376). 

IV. Brothers and sisters (irmdos), legitimate or illegiti- 
mate, by the same father or mother (germanos) or not, and 
collaterals, legitimate or illegitimate, unto the third degree 
inclusive. 

v. The adopted child with the surviving child of the 
adoptive father or mother (Art. 376). 

VI. Persons already married (Art. 203). 

VII. The adulterous spouse, with the paramour (co- 
reo), condemned as such. 

VIII. The surviving spouse with the accomplice con- 
demned as guilty of homicide, or attempted homicidcij 
against the other consort. 

IX. Persons in any manner coerced and those incapable 
of consenting. 

X. The abductor (raptor) with the woman abducted, 
while she is not out of his power and in a safe place. 

XI. Those subject to parental power, guardianship, or 
curatorship, while they have not obtained the consent of the 
father, tutor or curator, or such consent has not been sup- 
plied (Art. 212) . 

XII. Women minors under 16 years and male minors 
under 18 years. 

XIII. The widower or the widow who has a child by the 
deceased spouse, so long as the inventory of the marital 
(casal) property has not been made (Art. 225), and parti- 
tion has not been made to the heirs. 

XIV. The widow or the woman whose marriage has 
been decreed void or has been annulled, until ten months 
after the widowhood, or the dissolution of the conjugal 



48 CnOL CODE OF BEAZaXi. 

society, unless, before the end of said period, she has given 
birth to a child. 

XV. The guardian or curator and his descendants, 
ascendants, brothers or sisters, brothers or sisters-in-law, 
or nephews or nieces, with the person under guardian^ip 
or curatorship, so long as the guardianship or curatorship 
has not ceased, and the respective accounts are not settled, 
except with the paternal or maternal consent manifested in 
an authentic instrument in writing or in the testament. 

XVI. The judge or clerk (escrivao) and their descend- 
ants, ascendants, brothers or sisters, brothers or sisters-in- 
law, or nephews or nieces, with an orphan or widow of the 
territorial district in which either one has exercised his 
profession, except with the special license of the superior 
judiciary authority. 

Art. 184. The affinity resulting from spurious filiation 
may be proven by the spontaneous confession of the ascend- 
ants of the person impeded; and, if they wish, they shall 
have the right to make it under judicial secrecy (em se- 
gredo de justica) . 

Single Paragraph. That resulting from natural filiation 
may also be proven by spontaneous confession of the 
ascendants, if the proof prescribed in Art. 357 does not 
exist. 

Art. 185. For the marriage of minors under 21 years, 
being legitimate children, the consent of both parents is 
necessary. 

Art. 186. If they disagree between themselves, the 
paternal will shall prevail, or, where the couple (casal) is 
separated by divorce or annulment of the marriage, the 
wiU of the spouse with whom the children are. 

Single Paragraph. If, however, the parents are illegiti- 
mate, the consent of the one who has acknowledged the 



INTERPOSING IMPEDIMENTS. 49 

child will suffice, or, if it be not acknowledged, the maternal 
consent. 

Art. 187. Until the celebration of the marriage the par- 
ents, guardians and curators, may retract their consent. 

Art. 188. The refusal of consent, when unjust, may be 
supplied by the judge, with recourse to the superior court 
(instancia) . 

CHAPTER III. 

Op the Interposing op Impediments. 

Art. 189. The impediments of Art. 183, nos. I to XII, 
may be interposed (oppostos) : 

I. By the official of the civil register. 

II. By whoever presides at the celebration of the mar- 
riage. 

III. 'By any person of lawful age, who, over his signa- 
ture, presents a written declaration containing {instruida 
com) the proofs of the fact which he alleges. 

Single Paragraph. If he cannot set out (instruir) the 
proofs in the opposition, the opponent shall specify {pre- 
cisard) the place where they exist, or shall name at least 
two witnesses, residents in the Municipality, who attest the 
impediment. 

Art. 190. The other impediments can only be inter- 
posed: 

I. By the relatives (parentes), in direct line, whether 
consanguineous or by affinity, of one of the parties {nuben- 
tes). 

II. By the collaterals, to the second degree, whether 
consanguineous or by affinity. 

Art. 191. The official of the civil register shall give to 
the parties, or their representatives, a copy (nota) of the 



50 CIVIL CODE OP BRAZIL. 

impediment interposed, setting out the grounds, the proofs, 
and, if the impediment were not interposed "ex-officio," 
the name of the opponent. 

Single Paragraph. The right is saved to the parties 
(nuientes) to make proof against the impediment, and to 
bring civil and criminal actions against the person making 
the opposition (opponente de ma fe) in bad faith. 

CHAPTER IV. 

Of the Celebration op the Marriage. 

Art. 192. The marriage shall be celebrated on the day, 
and at the hour and place previously designated by the 
authority who is to preside at the act, upon the petition 
of the contracting parties, who shall show themselves 
habilitated with the certificate required by Art. 181, § 1. 

Art. 193. The solemnity shall be ^celebrated in the 
house of audiences, with all publicity, the doors open, and 
there being present at least two witnesses, relatives or not 
of the parties, or, in case of vis major, if the parties wish 
and the judge consent, in another house, public or pri- 
vate. 

Single Paragraph. When the marriage is in a private 
house, it shall remain with the doors open during the act, 
and, if either of the parties cannot write, there shall be four 
witnesses. 

Art. 194. The parties being present, in person or by 
special attorney-in-fact (produrador) , together with the 
witnesses and the official of the register, the president of 
the act, after hearing the affirmation of the contracting 
parties that they persist in the piirpose of marrying by 
their free and spontaneous will, shall declare the marriage 
effected in these terms : 

"In accordance with the will which you both have just 



V CELEBRATION OP MARRIAGE. 51 

affirmed before me, to receive each other as husband and 
wife, I, in the name of the law, declare you married. ' ' 

Art. 195. Immediately after its celebration, the entry 
shall be made in the book of registry (Art. 202) . 

In the entry, signed by the president of the act, the 
spouses, the witnesses and the official of the register, there 
shall be recorded (exarados) : 

I. The names, surnames, dates of birth, profession, 
domicile and present residence of the spouses. 

II. The names, surnames, dates of birth or of death, 
domicile and present residence of the parents. 

III. The names and surnames of the preceding spouse 
and the date of dissolution of the former marriage. 

IV. The date of the publication of the bans (proclamas) 
and of the celebration of the marriage. 

V. The recital (relagdo) of the documents presented to 
the official of the register (Art. 180). 

VI. The names, surnames, profession, domicile and 
present residence of the witnesses. 

VII. The regimen of the marriage, with the declara- 
tion of the date and of the notarial officer (cartorio en 
cujas notas foi passada) before whom the antenuptial in- 
strument was executed, when the regimen is not that of 
community (communhdo) or the legal, established in Title 
III of this Book, for certain marriages. 

Art. 196. The instrument of authorization to marry 
shall be copied integrally in the antenuptial instrument 
(escriptura) . 

Art. 197. The celebration of the marriage shall be im- 
mediately suspended, if either of the contracting parties: 

I. Refuses the solemn affirmation of his will. 

II. Declares that it is not free and spontaneous. 

III. Declares himself to have repented. 



52 CIVIL CODE OP BRAZIL. 

Single Paragraph. The contracting party who, by rea- 
son of any of these facts, gives cause for the suspension of 
the act, shall not be permitted to retract on the same day. 

Art. 198. In case of the serious illness (inolestia) of 
one of the contracting parties, the president of the act 
shall go to celebrate it in the house of the party (o im- 
pedido), and, if urgent, even at night, before four wit- 
nesses, who are able to write. 

§ 1. The failure or inability (impedimento) of the com- 
petent authority to preside at the marriage shall be sup- 
plied by any of his legal substitutes, and that of the official 
of the civil register by another "ad hoc," appointed by the 
president of the act. 

§2. The loose record {termo avulso), which the official 
"ad hoc" makes, shall be carried to the register in the 
shortest time possible. 

Art. 199. The official of the register, under directions 
(mediante despacho) of the competent authority, and in 
view of the documents required by Art. 180 and independ- 
ently of the edict of bans (edital de proclamas) (Art. 181), 
shall give the certificate ordered by Art. 181, § 1 : 

I. When there occurs any urgent motive which justifies 
the immediate celebration of the marriage. 

II. "When either of the contracting parties is in immi- 
nent danger (risco) of his life. 

Single Paragraph. In this case, if the parties are un- 
able to secure {nao obtendo) the presence of the authority 
whose duty it is to preside at the act, nor of his substitute, 
they may celebrate it in the presence of six witnesses, who 
are not related to the contracting parties, in the direct line 
or collaterally, in the second degree. 

Art. 200. These witnesses shall appear within five days 



CELEBRATION OP MAKHIAGE. 53 

before the nearest judicial authority, requesting that the 
following declarations be taken of them for record (por 
termo) : 

I. That they were called in on behalf of the sick party. 

II. That the sick party,, in their judgment, appeared in 
danger of life. 

III. That in their presence the contracting parties de- 
clared freely and spontaneously to receive each other as 
husband and wife. 

§ 1. The request being recorded and the declarations 
taken, the judge will proceed to the necessary steps {dili- 
gencias) to ascertain whether the contracting parties 
could have been habilitated for marriage, in the ordinary 
form, and shall hear the interested parties, if they so re- 
quest, within fifteen days. 

§ 2. When the competency (idoneidade) of the spouses 
to marry is determined, the competent authority will so 
decide, with voluntary recourse to the parties. 

§ 3. If no recourse is had against the decision, or if it 
has passed to final judgment notwithstanding the recourses 
interposed, the judge will order it transcribed in the book 
of registry of marriages. 

§ 4. The entry thus effected will make the effects of the 
marriage retroactive, in respect to the status of the spouses, 
to the date of its celebration, and with respect to their com- 
mon children, to the date of their birth. 

§ 5. The formalities of this and of the preceding Article 
shall be dispensed, if the sick party convalesces and can 
ratify the marriage in the presence of the competent author- 
ity and of the official of the register. 

Art. 201. The marriage may be celebrated by power of 



54 CIVIL CODE OF BRAZIL. 

attorney containing special powers to the mandatory to 
receive, in the name of the grantor, the other party. 

Single Paragraph. The prisoner, or condemned person, 
may marry by power of attorney, when he is not permitted 
by the authority in whose custody he is, to appear in per- 
son. 

CHAPTER V. 

Of the Proofs op Maeriage. 

Art. 202. The marriage celebrated in Brazil is proven 
by the certificate of the registry, made at the time of its 
celebration (Art. 195). 

Single Paragraph. The absence (falta) or loss of the 
civil register being shown, any other kind of proof is 
admissible. 

Art. 203. The marriage of persons who deceased in the 
possession of the status of married cannot be contested in 
prejudice of their common offspring, except by means of 
the certificate of the civil register, proving that either of 
them was already married when he contracted the marriage 
impugned (Art. 183, no. VI). 

Art. 204. The marriage contracted out of Brazil is 
proven in accordance with the law of the country where it 
was celebrated. 

Single Paragraph. If, however, it was contracted be- 
fore a consular agent, it shall be proven by a certificate 
of the entry in the register of the consulate. 

Art. 205. When the proof of the legal celebration of 
the marriage results from judicial process, the inscription 
of the sentence in the book of the civil register, will pro- 
duce all civil effects from the date of the marriage, in 
respect both to the spouses and the children. 



VOID AND VOIDABLE MARRIAGE. 55 

Art. 206. In case of doubt between the proofs pi'o and 
contra, the judgment will be for the marriage, if the 
spouses, whose marriage is impugned, live or have lived in 
possession of the status of married. 

CHAPTER VI. 

Of Void and Voidable Makruges. 

Art. 207. The marriage contracted with infraction of 
any of the numbers I to VIII of Art. 183, is null and of no 
effect, as regards the contracting parties and as regards 
their children. 

Art. 208. The marriage contracted before an incom- 
petent authority (Arts. 192, 194, 195 and 198), is also 
void. But this nuUity is considered cured, if it is not 
pleaded within two years from the celebration. 

Single Paragraph. Before the expiration of this time, 
the declaration of nullity may be demanded: 

I. By any interested party. 

II. By the Public Ministry, unless one of the spouses 
has already deceased. 

Art. 209. The marriage contracted with infraction of 
any of the numbers IX to XII of Art. 183, is voidable. 

Art. 210. The annulment of the marriage contracted by 
one under coercion or by one incapable of consent, can onl.y 
be demanded : 

I. By the party coerced. 

II. By the incapable. 

III. By their legal representatives. 

Art. 211. One who has contracted marriage while in- 
capable, may ratify it when he acquires the necessary 
capacity, and this ratification will retroact in its effects to 
the date of the celebration. 



56 CIVIL CODE OF BRAZIL. 

Art. 212. The annulment of the marriage contracted 
with infraction of no. XI of Article 183 can only be de- 
manded by the persons who had the right of consent and 
who were not present at the act. 

Art. 213. The annulment of the marriage of the minor 
female under sixteen years and of the minor male under 
eighteen shall be demanded: 

I. By the minor spouse him or herself. 

II. By their legal representatives. 

III. By the persons designated in Art. 190, in the same 
order. 

Art. 214. The said minors may, however, marry in order 
to avert the imposition or the execution of a criminal pen- 
alty. 

Single Paragraph. In such case the judge may order the 
separation of bodies until the spouses attain legal age. 

Art. 215. The marriage followed by pregnancy shall not 
be annulled for want of age. 

Art. 216. "When the annulment of the marriage is de- 
manded by third persons (Art. 213, nos. II and III), the 
spouses may ratify it, upon attaining the age fixed in Art. 
183, no. XII, before the judge and the official of the civil 
register. The ratification will have retroactive effect, the 
regimen of separation of property prevailing in the mean- 
while. 

Art. 217. The annulment of the marriage does not 
affect {nao oista) the legitimacy of the child conceived or 
had before or during it (na constancia delle). 

Art. 218. The marriage is also voidable, if on the part 
of one of the parties there was, in consenting, an essential 
error in respect to the person of the other. 



ANNULMENT OF MARRIAGE. 57 

Art. 219. Essential error in respect to the person of the 
other spouse, is considered : 

I. What was said (o que diz) with respect to the iden- 
tity of the other spouse, his honor and good fame, if this 
error is such (sendo tal) that the subsequent knowledge of 
it renders the life in common unbearable to the deceived 
spouse. 

II. Ignorance of an unbailable {inafiangavel) crime, 
previous to the marriage and definitively adjudged by a 
condemnatory sentence. 

III. The deflowering of the wife, without knowledge of 
the husband. 

Art. 220. The annulment of the marriage, in the cases 
of the preceding Article, can only be demanded by the 
deceived spouse. 

Art. 221. "Whether voidable, or even void, the marriage, 
when contracted in good faith by both spouses, produces 
all its civil effects until the date of the sentence annulling 
it, both in respect to the parties and to the children. 

Single Paragraph. If only one of the spouses acted in 
good faith in celebrating the marriage, its civil effects shall 
only benefit such party and the children. 

Art. 222. The nullity of the marriage shall be contested 
(processar-se-d) in ordinary action, in which a curator shall 
be appointed to defend it. 

Art. 223. Before bringing the action of nullity of mar- 
riage, of annulment, or of divorce (desquite) , the complain- 
ant (autor) shall demand, upon presentation of documents 
authorizing it, the separation of bodies, which shall be 
granted by the judge in the shortest time possible. 

Art. 224. Upon the separation being granted, the wii'e 
may ask for provisional support (alimentos) , which shall 
be assigned to her, in the form of Article 400. 



58 CIVIL CODE OF BRAZIL. 

CHAPTER VII. 

Penal Provisions. 

Art. 225. The widower, or the widow, with children of 
the deceased spouse, who marries before making the inven- 
tory of the maritar property (casal) and making partition 
to the heirs, shall lose the right to the usufruct of the prop- 
erty of the said children. 

Art. 226. In the marriage with infraction of Art. 183, 
nos. XI to XVI, the regimen of separation of property is 
obligatory, and the infractor spouse cannot make gifts to 
the other. 

Single Paragraph. The guardian (tutor) is considered 
guilty (culpado) who cannot present in his favor the excuse 
of the final clause of Art. 183, no. XV. 

Art. 227. The fine of 100 to 500 milreis, besides the 
penal responsibility applicable to the case, is incurred by 
the official of the register: 

I. Who publishes the edict of Art. 181 without being 
requested by both contracting parties. 

II. Who gives the certificate of Art. 181, § 1, before the 
presentation of the documents of Art. 183, or pending the 
opposition of any impediment. 

III. Who does not declare the impediments, the opposi- 
tion of which is made to him, or the existence of which, 
when applicable ex-officio, is known to him with certainty 
(Art. 189, no. I). 

Art. 228. The same penalties are incurred by the judge : 

I. Who celebrates the marriage before the removal of 
the impediments opposed against either of the parties. 

II. Who fails to receive them, when opportunity op- 
posed, in the terms of Arts. 189 to 191. 



LEGAL EFFECTS OF MARRIAGE. 59 

III. "Who refrains from opposing them, when known to 
him and they are such as are opposed ex-officio (Art. 189, 
no. II). 

IV. Who disqualifies himself (se recusar) to preside at 
the 'marriage, without just cause. 

Single Paragraph. It is incumbent upon the interested 
parties to demand {promover) the application of the pen- 
alties imposed (comminadas) in Arts. 225 and 226. Those 
of this Article and of Art. 227 shall be demanded by the 
Public Ministry, and may be demanded by the interested 
parties. 

TITLE II. . 
Of the Juridical Effects of Marriage. 

CHAPTER I. 

General Dispositions. 

Art. 229. Creating the legitimate family, the marriage 
legitimates the common children born or conceived prior to 
it (Arts. 352 to 354). 

Art. 230. The regimen of property between spouses 
goes into effect (comega a vigorar) from the date of the 
marriage, and is irrevocable. 

Art. 231. The duties of both the spouses are : 

I. Eeciproeal fidelity. 

II. Life in common, in the conjugal domicile (Arts. 233, 
no. IV and 234). 

III. Mutual assistance. 

IV. Support, care and education of the children. 

Art. 232. When the marriage is annulled for the fault 
(por culpa) of one of the spouses, the latter shall incur : 



60 CIVIIi CODE OP BEAZIL. 

I. The loss of all the advantages had from the innocent 
spouse. 

II. 'The obligation to perform the promises made to 
the innocent one, in the antenuptial contract (Arts. 256 
and 312). 

CHAPTER II. 
Op the Rights and Duties op the Husband. 

Art. 233. The husband is the head (chefe) of the con- 
jugal society. 
He is entitled to (compete-lhe) -. 

I. The legal representation of the family. 

II. The administration of the common property and of 
the private property of the wife, which the husband is 
entitled to administer by virtue of the matrimonial regimen 
adopted, or from the antenuptial pact (Arts. 178, § 9, no. 
I, c, 274, 289, no. I, 311). 

III. The right to fix and to change the domicile of the 
family (Art. 36). 

IV. The right to authorize the profession of the wife 
and her residence outside of the conjugal roof (Arts. 231, 
no. II ; 242, no. VII ; 243 to 245, no. II ; 247, no. Ill) . 

Art. 234. The obligation to support the wife ceases, for 
the husband, when she abandons without just reason the 
conjugal habitation, and refuses to return to it. In this 
case, the judge may, according to the circumstances, order, 
for the benefit of the husband and of the children, the tem- 
porary sequestration of part of the private income {rendi- 
mentos) of the wife. 

Art. 235. The husband cannot, without the consent of 
the wife, whatever may be the regimen of the property : 

I. Alienate, mortgage or encumber with a real charge 
(onus) the immovable property, or real rights upon the 



RIGHTS AND DUTIES OF HUSBAND. 61 

immovables of other persons (Arts. 178, § 9, no. I, a, 237, 
276 and 293). 

II. Sue or be sued (pleitear), as plaintiflE or defendant, 
in regard to such properties and rights. 

III. Give bond (Arts. 178, § 9, no. I, b, and 263, no. X). 

IV. Make a gift, not being remuneratory or of small 
value, of the common properties or income (Art. 178, § 9, 
no. I, b). 

Art. 236. Doweries or wedding gifts are good, however, 
made to daughters and the gifts made to sons on the occa- 
sion of their marriage or the establishment of separate es- 
tates (economia) (Art. 313). 

Art. 237. It is the duty of the judge {cabe ao juiz) to 
supply the consent (outorga) of the wife, when she refuses 
it without just motive, or it is impossible for her to give it 
(Arts. 235, 238 and 239. 

Art. 238. The judicial supplial of the consent (outorga) 
authorizes the act of the husband, but it does not obligate 
the own property of the wife (Arts. 247, Single Paragraph, 
269, 274 and 275). 

Art. 239. The annulment of the acts of the husband 
done without the consent of the wife, or without the sup- 
plial of the judge, can only be demanded by her or her 
heirs (Art. 178, § 9, no. I, a, and no. II). 

CHAPTER III. 
Of the Rights and Duties of the Wife. 

Art. 240. The wife assumes, by marriage, besides the 
names (apjellidos) of the husband, the condition of his 
companion, consort and help (auxiliar) in the burdens 
(encargos) of the family (Art. 324). 



62 CIVIL CODE OF BRAZIL. 

Art. 241. If the regimen of properly is not that of 
universal community, the husband will recover from the 
wife the expenses which he has made in the defense of her 
private property and rights. 

Art. 242. The wife cannot, without the authorization of 
the husband (Art. 251) : 

I. Do the acts which he could not do without the con- 
sent of the wife (Art. 235). 

II. Alienate, or encumber with a real charge, the im- 
movables of her private ownership (dominio), whatever 
may be the regimen of the property (Arts. 263, nos. II, III, 
VIII, 269, 275 and 310). 

III. Alienate her real rights upon the immovables of 
another person. 

IV. Accept or repudiate an inheritance or legacy. 

V. Accept a guardianship, curatorship or other public 
office or employment (munus) . 

VI. Litigate in civil or commercial suits, except in the 
cases indicated in Arts. 248 and 251. 

VII. Exercise a profession (Art. 233, no. IV). 

VIII. Contract obligations, which may involve the 
alienation of the marital property (casal). 

IX. Accept mandates (Art. 1299). 

Art. 243. The authorization of the husband may be gen- 
eral or special, but it must be evidenced {constar) by public 
instrument or private instrument previously authenticated. 

Art. 244. This authorization is revocable at all times, 
the rights of third persons and the necessary effects of acts 
initiated being respected. 

Art. 245. The marital authorization may be judicially 
supplied : 

I. In the cases of Art. 242, nos. I to V. 



BIGHTS AND DUTIES OF WIPE. 63 

II. In the cases of Art. 242, nos. VII and VIII, if the 
husband does not furnish the means of support to the wife 
and children. 

Single Paragraph. The judicial supplial of authoriza- 
tion validates the acts of the wife, but does not obligate 
the own property of the husband. 

Art. 246. The wife who exercises a lucrative profession, 
shall have the right to perform all the acts inherent in its 
exercise and in its defence, as well as to dispose freely of 
the product of her labor. 

Art. 247. The wife is presumed to be authorized by her 
husband : 

I. To purchase, even on credit, the things necessary to 
the domestic economy. 

II. To obtain, by loan, the amount which the acquisition 
of these things may require. 

III. To contract obligations concerning the industry or 
profession which she exercises with the authorization of the 
husband, or the supplial of the judge. 

Single Paragraph. The wife who occupies a public 
oflSce or employment (cargo), or engages for more than six 
months in a profession exercised outside of the conjugal 
home (lar), is always considered authorized by the hus- 
band. 

Art. 248. Independently of authorization, the married 
woman may : 

I. Exercise the right pertaining to her over the persons 
of children of a former marriage (Art. 329). 

II. Disencumber or recover the immovables of the mari- 
tal estate (casal) which the husband may have encumbered 
or alienated without her consent (outorga) or its supplial 
by the judge (Art. 235, no. I). 



64 CIVIL CODE OP BRAZIL. 

III. Annul the bonds or gifts made by the husband with 
infraction of the provisions of nos. Ill and IV of Art. 235. 

IV. Recover the common movable or immovable prop- 
erty given or transferred by the husband to his concubine 
(Art. 1177). 

Single Paragraph. This right prevails whether or not 
the wife is in company of the husband, and although the 
gift is dissimulated as a sale or other contract. 

V. Dispose of the property acquired in conformity with 
the preceding number, and of any other, not being immov- 
able, which she may possess free from the administration of 
the husband. 

VI. Institute such proceedings for her security and 
bring such suits {prmnover os meios assecuratorios e 
acQoges) as she may lawfully have {zue Ihe compeivrem) 
against her husband, on account of her dowry or other 
property subject to his administration (Arts. 263, 269 and 
289). 

VII. Bring action for the annulment of the marriage 
(Arts. 207, et seq.). 

VIII. Bring the action for divorce (desquite) (Art. 
316). 

IX. Demand support (alimentos) when due her (Art. 
224). 

X. Make a testament or dispositions of last will (von- 
tade). 

Art. 249. The actions founded on nos. II, III, IV and 
VI of the preceding Article pertain to the wife and to her 
heirs. 

Art. 250. Except in the case of no. IV of Art. 248, the 
third person prejudiced by the sentence favorable to the 
wife, has a right of action over (direito regressivo) against 
the husband or his heirs. 



RIGHTS AND DUTIES OP WIPE. 65 

Art. 251. The wife is entitled to the direction and 
administration of the marital estate (casal), when the hus- 
band: 

I. Is in a remote or unknown place. 

II. Is in prison for more than two years. 

III. Is judicially declared under interdict. 

Single Paragraph. In these cases, the wife is entitled : 

I. To administer the common property. 

II. To dispose of her own private property, and alien- 
ate the common movables and the private movables of tht; 
husband. 

III. To administer the property of the husband. 

IV. To alienate the common immovables and those of 
the husband, upon the special authorization of the judge. 

Art. 252. The want of authorization of the husband, 
when necessary (Art. 242), and not supplied by the judge, 
will invalidate the act of the wife; this nullity may be 
pleaded by the other spouse until two years after the con- 
jugal society is terminated. 

Single Paragraph. The ratification of the husband, 
proven by public instrument or private instrument au- 
thenticated, revalidates the act. 

Art. 253. The acts of the wife authorized by the hus- 
band, obligate all the property of the marital estate (casal), 
if the matrimonial regimen is that of community, and only 
her own private property, if the regimen is otherwise and 
the husband does not jointly assume the responsibility of 
the act. 

Art. 254. Whatever be the regimen of the marriage, the 
property of both spouses is equally obligated by the acts 
which the wife performs in conformity with Art. 247. 

Art. 255. The annulment of the acts of one spouse for 
want of the indispensable consent (outorga) of the other. 



66 CIVIL CODE OF BRAZIL. 

renders the former liable {importa ficar o primeiro obri- 
gado) for the value {importancia) of the advantage which 
may have resulted from the annulled act to him or her {Ihe 
haja advindo), to the consort, or to the marital estate 
(casal). 

Single Paragraph. When the spouse responsible for the 
annulled act has no private property sufficient, the damage 
to third persons acting in good faith shall be settled out of 
the common property in proportion to the profit which tho 
marital estate received (na razdo do proveito que lucrar o 
casal) . 

TITLE III. 
Of the Begimen of Property Between the Spouses. 

CHAPTER I. 
General Dispositions. 

Art. 256. It is lawful for the parties {nuhentes) before 
the celebration of the marriage, to enter into such stipula- 
tions in regard to their property as they deem proper 
(Arts. 261, 273, 277, 283, 287 and 312). 

Single Paragraph. Such agreements {convengoes) shall 
be void : 

I. If not made by notarial act {escriptura publica). 

II. If not followed by marriage. 

Art. 257. The agreement or clause will be held for 
nought {ter-se-a por nao escripta) : 

I. Which prejudices the conjugal or the paternal rights. 

II. Which contravenes an absolute disposition of law. 

Art. 258. There being no agreement, or it being void, 
the regimen of universal community shall prevail among 
the spouses in respect to their property. 



MARITAL PROPERTY RIGHTS. 67 

Single Paragraph. The regimen of separation of prop- 
erty is, however, obligatory in the marriage: 

I. Of persons who celebrate it with infraction of the 
enactments of Art. 183, nos. XI and XVI (Art. 216). 

II. Of a man over sixty and a woman over fifty years 
of age. 

III. Of the orphan without father and mother, or of 
the minor, in the terms of Arts. 394 and 395, although he 
marries, in the terms of Art. 183, no. XI, with the consent 
of the guardian. 

IV. Of aU those who are dependent, in order to marry, 
upon judicial authorization (Arts. 183, no. XI, 384, no. 
Ill, 426, no. I, and 453). 

Art. 259. Although the regimen be not that of com- 
munity of property, the principles of such regimen shall 
apply, if the contract is silent, in respect to the community 
(communicagao) of property acquired during the exist- 
ence of the marriage. 

Art. 260. The husband who is in possession of the pri- 
vate property of the wife, shall be responsible to her and 
to her heirs : 

I. As usufructuary, if the income (rendimento) is com- 
mon (Arts. 262, 265, 271, no. V, and 289, no. II). 

II. As attorney-in-fact (procurador) , if he has a man- 
date, express or tacit, to administer it (Art. 311). 

III. As depository, if he is not usufructuary or admin- 
istrator (Arts. 269, no. II, 276 and 310) . 

Art. 261. Antenuptial agreements shall not have effect 
as against third persons until after they are transcribed, 
in a special book, by the official of the register of immov- 
ables of the domicile of the spouses (Art. 256). 



68 CIVIL CODE OP BRAZIL. 

CHAPTER II. 

Of the Begimen op Universal Community. 

Art. 262. The regimen of universal conummity {com- 
munhao) implies the community (communicagao) of all 
the present and future property of the spouses and their 
passive debts, with the exceptions of the following Ar- 
ticles. 

Art. 263. Excluded from the community are: 

I. Pensions, half -pay, montepios, service rewards {ten- 
gas) , and other like incomes. 

II. Property given or bequeathed with a clause against 
the community {incommunicahilidade) , and property sub- 
rogated in its place. 

III. Property encumbered with a trust (fideicommisso) 
and the right of the heir beneficiary {fideicommissario) , be- 
fore the suspensive condition is realized. 

IV. The dowry promised or constituted for the child 
of another marriage. 

V. The dowry promised or constituted expressly by one 
only of the spouses for a common child. 

VI. The obligations arising from illicit acts (Arts. 1518 
to 1532). 

VII. The debts anterior to the marriage, unless they 
arose for expenses of their preparations (aprestos), or re- 
sulted in their common profit. 

VIII. Antenuptial gifts made by one of the spouses to 
the other, with the clause against community (Art. 312). 

IX. Clothes for personal use, engagement jewelry given 
before marriage by the husband, professional books and 
instruments, and family portraits. 

X. The bond given by the husband without consent of 
the wife (Arts. 178, § 9, no. I, b, and 235, no. III). 



MABrrAL PROPERTY RIGHTS. 69 

XI. The property (bens) of the necessary inheritance, 
which is affected by the clause against community. Art. 
1723). 

Art. 264. The debts not embraced in the two exceptions 
of no. VII of the preceding Article, can only be paid dur- 
ing the marriage by the property which the debtor spouse 
brought into the marital estate {casal). 

Art. 265. The incommunicability of the property enum- 
erated in Art. 263, does not extend to the fruits, when they 
are received or become due during the marriage. 

Art. 266. During the continuance of the conjugal so- 
ciety, the ownership and possession of the property is in 
common. 

Single Paragraph. The wife, however, shall only ad- 
minister it by authorization of the husband, or in the cases 
of Art. 248, no. V, and Art. 251. 

Art. 267. The community is dissolved : 

I. iBy the death of one of the spouses (Art. 315, no. I). 

II. By the sentence which annuls the marriage (Art. 
222). 

III. By divorce (desquite) (Art. 322). 

Art. 268. The community being extinguished, and the 
division of the assets and liabilities (activo e passwo) 
effected, the responsibility of each of the spouses shall 
cease towards the creditors of the other for debts which 
the latter had contracted. 

CHAPTER III. 

Of the Regimen op Partial Community. 

Art. 269. When the contracting parties declare that 
they adopt the regimen of limited or partial community, 



70 CIVIL CODE OP BRAZIL. 

or maike use of equivalent expressions, it is understood that 
they exclude from the community : 

I. The property which each spouse po,ssessed at mar- 
riage, and that which should come to them, during the 
comtinuance of the matrimony, by gift or succession. 

II. The property acquired with means (valores) ex- 
clusively belonging to one of the spouses, in subrogation of 
his own private property. 

Art. 270. Likewise are not communicated : 

I. . Obligations previous to the marriage. 
II. Those arising from illicit acts. 
Art. 271. Into the community enter : 

I. Property acquired during the continuance of the 
marriage by onerous title, although only in the name of 
one of the spouses. 

II. Property acquired upon some contingency {facto 
eventual), with or without the concurrence {concurso) of 
previous labor or expense. 

III. Property acquired by gift, inheritance or legacy, in 
favor of both spouses (Art. 269, no. I). 

IV. The improvements {iemfeitorias) to the private 
property of each spouse. 

V. The fruits of the common property, or of the private 
property of each spouse, received during the continuance 
of the marriage, or pending at the time the communion of 
acquired property ceased. 

VI. The civil fruits of the labor or industry of each 
spouse or of both. 

Art. 272. The property the acquisition of which is based 
upon (tiver por titulo) a cause anterior to the marriage, is 
incommunicable. 

Art. 273. In the regimen of partial communion, the 
contracting parties shall state specifically, in the antenup- 



MARITAL PEOPEBTY BIGHTS. 71 

tial contract or other public instrument prior to the mar- 
riage, the description of the movable property which eaeli 
one brings into the marital estate (casal), under penalty 
of its being considered as acquired. 

Art. 274. The administration of the marital estate 
(casal) pertains to the husband, and the debts contracted 
by him obligate, not only the common property, but also, 
in default of this, the private property of both of the 
spouses, in proportion to the profit which each one has 
gained. 

Art. 275. The disposition of the preceding Article is 
applicable to the debts contracted by the wife, in the cases 
in which her acts are authorized by the husband, are pre- 
sumed to be so authorized, or authorization is unnecessary 
(Arts. 242 to 244, 247, 248 and 233, no. V). 

CHAPTER IV. 

Op the Regimen of Sbiparation. 

Art. 276. When the contracting parties marry, stip- 
ulating separation of property, that of each spouse shall 
remain under his or her exclusive administration, who can 
freely alienate it, if it be movables (Arts. 235, no. I, 242, 
no. II, and 310). 

Art. 277. The wife is obliged to contribute to the ex- 
penses of the household (casal) with the income of her 
property, in the proportion of its value relatively to that 
of the husband, saving stipulation to the contrary in the 
antenuptial contract (Arts. 256 and 312). 



72 CIVIL CODE OP BRAZIL. 

CHAPTER V. 
Of the Dotal Regimen. 
Section I. Of the Constitution of the Dowry. 

Art. 278. It is of the essence of the dotal regimen to 
describe and appraise (estimarem-se) , each by itself, in the 
antenuptial instrument (Art. 256), the properties which 
constitute the dowry (dote), with express declaration that 
they are subject to this regimen. 

Art. 279. The dowry may be constituted by the intended 
bride (nubente) herself, by any of her ascendants, or by 
another. 

Single Paragraph. All the interested parties shall al- 
ways intervene in the celebration of the contract, in person 
or by procurator. 

Art. 280. The dowry may embrace, in whole or in part, 
the present and future property of the wife. 

Single Paragraph. The future property, however, is 
only considered embraced in the dowry, when, upon being 
acquired by gratuitous title, it is so declared in express 
clause of the antenuptial pact. 

Art. 281. It is not lawful for the married parties to 
increase the dowry. 

Art. 282. The dowry constituted by strangers during 
the marriage does not alter, in respect to the other prop- 
erty, the pre-established regimen. 

Art. 283. It is lawful to stipulate in the antenuptial 
instrument, for the reversion of the dowry to the giver 
{dotator) upon the dissolution of the conjugal society. 

Art. 284. If the dowry were promised by the parents 



DOWRY PROPERTY. 73 

jointly, without declaration of the part which each con- 
tributes, it is understood that each one is obligated for 
one-half. 

Art. 285. When the dowry is constituted by any other 
person, he will only respond for eviction if he has acted in 
bad faith, or if his responsibility has been stipulated. 

Art. 286. The fruits of the dowry are due from the 
celebration of the marriage, if no period has been stip- 
ulated. 

Art. 287. It is permitted to stipulate in the dotal con- 
tract : 

I. That the wife may receive, directly, for her private 
expenses, a determined part of the income from the dotal 
property. 

II. That, besides (a par de) the dotal property, there 
may be other property subjected to diverse regimens. 

Art. 288. In the dotal regimen, the provisions of this 
Title, Chapter III (Arts. 269 to 275), are applied to the 
acquired properties (aos adquiridos). 

Section II. Of the Rights and Obligations of the Husband 
in Relation to the Dotal Property. 

Art. 289. During the continuance (vigencia) of the con 
jugal society, it is the right of the husband : 

I. To administer the dotal property. 

II. To receive its fruits. 

III. To make use of {usar de) the judicial actions to 
which it gives rise. 

Art. 290. Saving express clause to the contrary, the 
ownership {dominio) of the property which constitutes 
(sobre que recair) the dowry, if movables, is presumed 



74 CIVIL CODE OF BBAZIIi. 

transferred to the husband, and not transferred, if immov- 
ables. 

Art. 291. The immovable acquired with the value (im- 
port ancia) of the dowry, when this consists of money, shall 
be considered dotal. 

Art. 292. When the dowry implies (importa) aliena- 
tion, the husband shall be considered proprietor, and can 
dispose of the dotal properties, all risks and advantages 
which may result being to his account. 

Art. 293. The dotal immovables cannot, under penalty 
of nullity, be encumbered, or alienated, except at public 
auction sale (em hasta puhlica), and by authorization of 
the competent judge, in the following cases : 

I. If the husband and wife, in accord, wish to endow 
their common daughters. 

II. In case of extreme necessity, in default of other re- 
courses for the support of the family. 

III. In the case of the first part of § 2 of Art. 299. 

IV. For repairs indispensable for the preservation of 
other immovable dowry property. 

V. When it is undivided, with third persons, and the 
division is impossible or prejudicial. 

VI. In case of disappropriation for public utility. 

VII. When situated in a place distant from the con- 
jugal domicile, and the convenience of selling it is there- 
fore manifest. 

Single Paragraph. In the last three cases, the price 
shall be applied for other property, which will be sub- 
rogated to it. 

Art. 294. The judge shall be subsidiarily responsible, 
who concedes alienation outside the cases and without the 
formalities of the preceding Article, or who does not make 



DOWRY PROPERTY. 75 

the proper orders {providenciar) for the subrogation of 
the price, in conformity with the Single Paragraph of the 
said Article. 

Art. 295. The nullity of the alienation may be de- 
manded : 

I. By the wife. 

II. By her heirs. 

Single Paragraph. The recovery {reivindicagao) of the 
movables, however, shall only be permitted, if the husband 
has no property with which he may respond for their value, 
or if the alienation by the husband and those subsequent 
between third persons, have been made by gratuitous title 
or in bad faith. 

Art. 296. The husband is obligated for losses and dam- 
ages to third persons prejudiced by the nullity, if in the 
contract of alienation (Arts. 293 and 294) the dotal nature 
of the immovables is not declared. 

Art. 297. If the husband has no immovable property, 
which can be mortgaged as security for the dowry, it can 
be stipulated in the antenuptial contract for bond (fianga) 
or other security (caugdo). 

Art. 298. The right to the dotal immovables does not 
prescribe during the marriage. But the right to the dowry 
movables prescribes, upon the responsibility of the hus- 
band. 

Art. 299. In respect to the passive debts, the following 
shall be observed : 

§ 1. Those of the husband, contracted before or after 
the marriage, shall not be paid except by his own private 
property. 

§ 2. Those of the wife, anterior to the marriage, shall 



76 



CIVIL CODE OP BEAZIIi. 



be paid by her extra-dotal property, or, in default of this, 
by the fruits of the dotal property, by the dotal movables, 
and, in the last case, by the dotal immovables. Those con- 
tracted after marriage can only be paid by the extra- 
dotal property. 

§ 3. Those contracted by the husband and wife jointly 
can be paid, either by the common property, or by the 
private property of the husband, or by the extra-dotal 
property. 

Section III. Of the Restitution of the Dowry. 

Art. 300. The dowry must be restored by the husband 
to the wife, or to her heirs, within the month which follows 
the dissolution of the conjugal society, if it can not be 
restored immediately (Art. 178, § 9, no. I, c, and no. II). 

Art.' 301. The price of fungible property, or of non-fun- 
gible, when legally alienated, can only be demanded six 
months after the dissolution of the conjugal society. 

Art. 302. If the dotal movables have been consumed by 
ordinary use, the husband shall be obliged to restore only 
such as remain, and in the condition in which they are at 
the time of the dissolution of the conjugal society. 

Art. 303. The wife can, in all cases, retain the objects 
of her use, in conformity with the disposition of Art. 263, 
no. IX, deducting their value from that which the husband 
must restore. 

Art. 304. If the dowry embraced capital or income, 
which has suffered diminution or eventual depreciation, 
without the fault of the husband, he shall discharge him- 
self of the obligation of restoring same, upon delivering 
the respective titles. 

Single Paragraph. When, however, it consists of usu- 



DOWRY PROPERTY. 77 

fruct, the husband or his heirs shall be obliged only to re- 
store the respective title and the fruits received after 
(apos) the dissolution of the conjugal society. 

Art. 305. The dowry is presumed received : 

I. If the marriage has continued (se tiver prolongado) 
for five years after the term established for its delivery. 

II. If the wife is the debtor. 

Single Paragraph. The right is saved, however, to the 
husband to prove that he did not receive it, in spite of hav- 
ing demanded it. 

Art. 306. Upon the dissolution of the conjugal society, 
the dotal fruits corresponding to the current year shall be 
divided between the two spouses, or between the one and 
the heirs of the other, proportionately to the duration of 
the marriage, in the course (decurso) of the same year. 

The years of the marriage are counted from the date of 
its celebration. 

Single Paragraph. In respect to crops obtained in 
periods greater or less than one year, the division shall be 
made proportionally to the time of the duration of the 
conjugal society, within the period of the crop. 

Art. 307. The husband has the right to indemnification 
for the necessary and useful improvements, according to 
their value at the time of restitution, and he responds for 
the damage caused by his fault. 

Single Paragraph. This right and this obligation are 
transmitted to his heirs. 

Section IV. Of the Separation of the Dowry and Its Ad- 
ministration by the Wife. 

Art. 308. The wife can judicially require the separation 
of the dowry, when the disorder of the business of the hus- 
band gives rise to the fear that the property of the latter 



78 CIVIL CODE OF BBAZIL. 

is not sufficient to secure her property; saving the right, 
which the creditors have, to oppose the separation, when 
fraudulent. 

Art. 309. Upon the separation of the dowry, the wife 
will be held as its administratrix, but it will continue in- 
alienable; and the judge will order (provendo o juiz), 
when he grants the separation, that the securities 
(valores) delivered by the husband in restoration of the 
dotal property, shall be converted into immovables. 

Single Paragraph. The sentence of separation shall be 
recorded (averbada) in the register mentioned in Art. 261, 
in order to produce effects in relation to third persons. 

Section V. Of Paraphernal Property. 

Art. 310. The wife preserves the ownership (pro- 
piedade), the administration, the enjoyment, and the free 
disposition of the paraphernal property; she cannot, how- 
ever, alienate the immovables (Art. 276). 

Art. 311. If the husband, as procurator constituted to 
administer the paraphernal or private property of the 
wife, is dispensated by express clause, from rendering ac- 
counts to her, he shall only be obliged to restore the exist- 
ing fruits : 

I. When she asks him for accounts. 

II. When she revokes the mandate to him. 

III. When the conjugal society is dissolved. 

CHAPTER VI. 

Of Antenuptial Q-ifts. 

Art. 312. Excepting the case of obligatory separation 
of property (Art. 258, Single Paragraph), the contracting 
parties are free to stipulate, in the antenuptial instrument, 



DISSOLUTION OF MAKRIAGE. 79 

for reciprocal gifts, or of one to the other, provided that 
they do not exceed one-half of the property of the donor 
(Arts. 263, no. VIII, and 232, no. II). 

Art. 313. The marriage gifts may also be made by third 
persons, in the antenuptial contract, or in a notarial act 
{escriptura publica) previous to the marriage. 

Art. 314. The gifts stipulated in antenuptial contracts, 
to take effect after the death of the donor, shall benefit the 
children of the donee, although the latter should decease 
before the former. 

Single Paragraph. In the case, however, that the donor 
survives all the children of the donee, the gift shall lapse 
(caducard). 

TITLE IV. 

Of the Dissolution of the Conjugal Society and of the 
Protection of the Person of the Children. 

CHAPTER I. 

Op the Dissolution op the Conjugal Society. 

Art. 315. The conjugal society terminates : 

I. By the death of one of the spouses. 

II. By the nullity or" annulment of the marriage. 

III. By divorce (desquite), amicable or judicial. 
Single Paragraph. The valid marriage is only dissolved 

by the death of one of the spouses, the presumption estab- 
lished in this Code, Art. 10, second part, not applying to it. 

Art. 316. The action of divorce (desquite) shall be 
ordinary, and shall pertain only to the spouses. 

Single Paragraph. If, however, the spouse be incapable 
of exercising it, he or she may be represented by any 
ascendant, or brother. 



80 CmL CODE OF BRAZIL. 

Art. 317. The action of divorce (desquite) can only be 
founded on some of the following motives : 

I. Adultery. 

II. Attempt to cause death {tentativa de morte). 

III. Ill treatment {sevicia), or serious insult {injuria 
grave) . 

IV. Voluntary abandonment of the conjugal home 
(lar), during two continuous years. 

Art. 318. Divorce shall also be granted by the mutual 
consent of the spouses, if they were married for more than 
two years, such consent being manifested before the judge 
and duly approved (homologado) . 

Art. 319. Adultery shall cease to be a motive for di- 
vorce : 

I. If the plaintiff has connived {concorrido) with the 
defendant to commit it. 

II. If the innocent spouse has forgiven it. 

Single Paragraph. The adultery is presumed forgiven, 
when the innocent spouse, knowing it, cohabits with the 
guilty one. 

Art. 320. In judicial divorce, if the wife is innocent 
and poor, the husband must provide her the alimentary 
pension, which the judge fixes. 

Art. 321. The judge will also fix the quota which the 
guilty spouse, or both, if both are guilty, must contribute 
for the raising and education of the children. 

Art. 322. The sentence of divorce authorizes the separa- 
tion of the spouses, and puts an end to the matrimonial 
regimen of the property, as if the marriage were dissolved 
(Art. 267). 

Art. 323. Whatever be the cause of the divorce, and the 



DISSOLUTION OP MAERIAGE. 81 

manner in which it is made, it is lawful for the spouses at 
all times to re-establish the conjugal society, in the terms 
in which it was constituted, provided that they do it, by 
regular act, before a competent judge (em juizo). 

Single Paragraph. The reconciliation shall in no way 
prejudice the rights of third persons, acquired during or 
after the divorce, whatever be the regimen of property. 

Art. 324. The woman condemned in the action of di- 
vorce {desquite), loses the right to use the name of the 
husband (Art. 240). 

CHAPTER II. 

Of the Protection op the Person op the Children. 

Art. 325. In case of dissolution of the conjugal society 
by amicable divorce, such agreement as the spouses make 
in regard to the custody {guarda) of the children, shall be 
observed. 

Art. 326. When the divorce is judicial, the minor chil- 
dren shall remain with the innocent spouse. 

§ 1. If both are guilty, the mother shall have the right 
to keep the daughters in her company while they are 
minors, and the sons until they are six years of age. 

§ 2. The sons older than six years shall be delivered 
into the custody of the father. 

Art. 327. There being grave motives, the judge may, in 
any case, for the good of the children, regulate their situa- 
tion with respect to their parents, in a different manner 
from that established in the preceding Articles. 

Single Paragraph. If all the children belong to one 
only of the spouses, the judge will fix the amount which 
the other shall contribute to their support. 



82 



CIVIL CODE OP BRAZIL. 



Art. 328. In case of the annulment of the marriage, 
there being common children, the provisions of Arts. 326 
and 327 shall be observed. 

Art. 329. The mother, who contracts new nuptials, does 
not lose the right to have the children with her; they can 
only be taken from her, by order of the judge, upon proof 
that she, or the step-father, does not treat them properly 
(Arts. 248, no. I and 393). 

TITLE V. 
Of the Relations of Relationship (Farentesco) . 

CHAPTER I. 

General Dispositions. 

Art. 330. Relations (parentes) in direct line are per- 
sons who are in the relation, the ones with the others, of 
ascendants and descendants. 

Art. 331. Relations (parentes) in collateral or trans- 
verse line, to the sixth degree, are persons who derive 
(provem) from a single trunk, without descending the one 
from the other. 

Art. 332. Relationship is legitimate, or illegitimate, ac- 
cording as it proceeds, or not, frdm marriage; natural, or 
civil, according as it results from consanguinity, or adop- 
tion. 

Art. 333. In the direct line, the degrees of relationship 
are counted by the number of generations, and in the col- 
lateral also by the number of them, counting up (subindo), 
however, from one of the relatives (parentes) to the com- 
mon ascendant, and then down to the other relative. 



RELATIONSHIP. 83 

Art. 334. Each spouse is related {alliado) to tlie rela- 
tions of the other by the bond (vinculo) of affinity. 

Art. 335. Affinity, in the direct line, is not extinguished 
with the dissolution of the marriage which originated it. 

Art. 336. Adoption establishes merely civil relationship 
between the adopter (adoptante) and the adopted (Art. 
376). 

CHAPTER II. 

Op Legitimate Filiation. 

Art. 337. Children conceived during the existence (nn 
constancia) of the marriage are legitimate, although it is 
annulled (Art. 217), or even void, if it was contracted in 
good faith (Art. 221). 

Art. 338. Presumed as conceived during the existence 
of the marriage, are : 

I. Children born one hundred and eighty days, at least, 
after the conjugal cohabitation (convivencia) is established 
(Art. 339). 

II. Those bom within three hundred days subsequent 
to the dissolution of the conjugal society by death, divorce, 
or annulment. 

Art. 339. The legitimacy of the child born before the 
expiration (decorridos) of the one hundred and eighty 
days mentioned in no. I of the preceding Article, cannot, 
however, be contested: 

I. If the husband before marriage had knowledge of the 
pregnancy of the wife. 

II. If he attended (assistiu), personally, or by pro- 
curator, at the making of the record of the birth of the 
child, without contesting his paternity. 

Art. 340. The legitimacy of the child conceived during 



84 CIVIL CODE OP BRAZIL. 

the existence of the marriage, or what is presumed as mar- 
riage (Arts. 337 and 338), can only be contested, by proof. 

I. That the husband was physically impossibilitated 
from cohabiting with the wife in the first hundred and 
twenty-one days, or more, of the three hundred which pre- 
ceded the birth of the child. 

II. That at that time the spouses were legally separated. 

Art. 341. The ground (motivo) of the preceding Article, 
no. II, will not avail {nao valerd) if the spouses have lived 
together (convivido) some day under the conjugal roof. 

Art. 342. Only when impotence is absolute, can its alle- 
gation avail against the legitimacy of the child. 

Art. 343. The adultery of the wife, with whom the hus- 
band lived under the same roof, does not suf&ce to over- 
come (illidir) the legal presumption of the legitimacy of 
the offspring. 

Art. 344. The right of contesting the legitimacy of chil- 
dren born of his wife pertains exclusively {cabe privati- 
vamente) to the husband (Art. 178, § 3). 

Art. 345. The action treated of in the preceding Article, 
when once initiated, passes to the heirs of the husband. 

Art. 346. The maternal confession does not suffice to 
exclude the paternity. 

Art. 347. (Legitimate filiation is proven by the certifi- 
cate of the record of birth, inscribed in the civil register. 

Art. 348. No one can claim {vindicar) a status con- 
trary to what is shown by {ao que result a do) the register 
of birth. 

Art. 349. In default or defect of the record of birth, 
legitimate filiation can be proven by any means admissible 
in law: 



LEGITIMATION. 85 

I. When there is a beginning (comego) of proof in 
writing, coming from the parents, jointly or separately. 

II. When there exist strong (vehementes) presumptions 
resulting from facts already certain. 

Art. 350. The action of proof of legitimate filiation per- 
tains to the child, while he lives, passing to his heirs, if he 
should die a minor, or incapable. 

Art. 351. If the action had been initiated by the child, 
his heirs can continue it, unless the plaintifE desisted, or 
his legal recourse were lost by lapse of time {ou a instaticia 
foi perempta) . 

CHAPTER III. 

Of Legitimation. 

Art. 352. Legitimated children are equal (equiparados) 
to legitimates. 

Art. 353. Legitimation results from the marriage of the 
parents, after the child is conceived or born (Art. 229). 

Art. 354. The legitimation of children deceased benefits 
their descendants. 

CHAPTER IV. 

Op the Acknowledgement op Illegitimate Children. 

Art. 355. The illegitimate child can be acknowledged 
(reconhecido) by the parents, jointly or separately. 

Art. 356. When the maternity appears from the record 
of the birth of the child, the mother can only contest it by 
proving the falsity of the record (termo), or of the declara- 
tions therein contained. 

Art. 357. The voluntary acknowledgement of the illegiti- 
mate child can be made either in the record of birth itself, 



86 CIVIL CODE OP BRAZIL. 

or by means of a notarial act {escriptura publica), or by- 
testament (Art. 184, Single Paragraph). 

Single Paragraph. The acknowledgment may precede 
the birth of the child, or succeed its decease, if he left 
descendants. 

Art. 358. Incestuous and adulterine children cannot be 
acknowledged. 

Art. 359. The illegitimate child, acknowledged by ono 
of the spouses, cannot live in the conjugal home (lar) with- 
out the consent of the other. 

Art. 360. The acknowledged child, while a minor, shall 
remain under the power of the progenitor who acknowl- 
edged it, and if l>oth acknowledge it, under the power of 
the father. 

Art. 361. The acknowledgment of the child cannot be 
subordinated to conditions or to terms. 

Art. 362. The child of full age (maior) cannot be 
acknowledged without his own consent, and the minor can 
impugn the acknowledgment, within the four years which 
follow his majority or emancipation. 

Art. 363. The illegitimate children of persons who do 
not come within {nao caibam) Art. 183, nos. I to IV, have 
an action against the parents, or their heirs, to demand the 
acknowledgement of filiation : 

I. If at the time of conception the mother was living 
in concubinage {concvl>inata com) with the pretended 
father. 

II. If the conception of the claimant child coincided 
with the rape (rapto) of the mother by the supposed 
father, or his sexual relations with her. 

III. If there exists a writing of the man (daquelle) to 



ADOPTION. 87 

whom the paternity is attributed, expressly acknowledg- 
ing it. 

Art. 364. The investigation of the maternity only is not 
permitted, when its purpose (tenha por fim) is to attribute 
illegitimate offspring to a married woman, or incestuous 
offspring to an unmarried woman {solteira). 

Art. 365. Any person, having a just interest, may con- 
test the action of investigation of paternity or maternity. 

Art. 366. The sentence which adjudges as properly in- 
stituted (procedente) the action of investigation, will pro- 
duce the same effects of (do) acknowledgement; it may, 
however, order that the child be raised and educated away 
from ifora de) the company of that one of the parents who 
denied this relationship (qualidade). 

Art. 367. Paternal and maternal filiation may result 
from a marriage declared void, although without the con- 
ditions of the putative marriage. 

CHAPTER V. 

Op Adoption. 

Art. 368. Only persons older (maiores) than fifty years, 
without legitimate or legitimated offspring, can adopt. 

Art. 369. The adopter (adoptante) must be at least 
eighteen years older than the adopted (adoptado). 

Art. 370. No one can be adopted by two persons, unless 
they are husband and wife. 

Art. 371. Until they have rendered accounts of their 
administration and settled the balance, the guardian or 
curator cannot marry his ward (pupillo ou curatelado) . 

Art. 372. A minor, or interdict, cannot be adopted with- 



88 CIVIL CODE OP BRAZIL. 

out the consent of the person under whose care (gvurda) 
he is. 

Art. 373. The adopted, when a minor or interdict, may 
free himself {desligar-se) from the adoption during the 
year next following {immediato ao) that in which the in- 
terdiction or minority ceases. 

Art. 374. The bond (vinculo) of adoption is also dis- 
solved : 

I. "When the two parties agree. 

II. When the adopted shows ingratitude against the 
adopter. 

Art. 375. The adoption shall be made by notarial act 
{escriptura puilica) in which conditions or terms {nem 
termo) are not admitted. 

Art. 376. The relationship resulting from adoption 
(Art. 336) is limited to the adopter and the adopted, ex- 
cept in respect to matrimonial impediments, in which re- 
spect the provisions of Art. 183, nos. Ill and V shall be 
observed. 

Art. 377. The adoption will produce its effects although 
children may come to the adopter, unless by the fact of 
birth, it is proven that the child was conceived at the time 
of the adoption. 

Art. 378. The rights and duties which result from nat- 
ural relationship are not extinguished by the adoption, 
except the paternal power (patrio poder), which will be 
transferred from the natural father to the adoptive. 



PAKENTAL POWER. 89 

CHAPTER VI. 

Op the Parental Power (Patrio Poder). 

Section I. Oeneral Dispositions. 

Art. 379. Legitimate, legitimated, acknowledged, and 
adoptive children are subject to the paternal power {patrio 
poder) while minors. 

Art. 380. During the marriage, the father, as chief of 
the family (Art. 233), exercises the paternal power, and in 
his case of his default (fait a) or impediment, the wife. 

Art. 381. Divorce does not alter the relations between 
the parents and children, except as respects the right, whicli 
pertains to the former, to have the latter in their com- 
pany (Arts. 826 and 327). 

Art. 382. Upon the dissolution of the marriage by the 
death of one of the spouses, the paternal power belongs to 
the surviving spouse. 

Art. 383. The illegitimate child not acknowledged by 
the father, remains under the maternal power. If, how- 
ever, the mother is not known, or is not capable of exercis- 
ing the paternal power, a guardian will be given to tho 
minor. 

Sectio7i II. Of the Patrio Poder With, Respect to the Per- 
son of the Children. 

Art. 384. With respect to the person of the minor chil- 
dren, the parents (paes) have the right : 

I. To direct their raising and education. 

II. To have them in their company and custody. 

III. To grant or deny consent to their marriage. 

IV. To appoint a guardian for them, by testament or 



90 



CIVIL CODE OF BRAZIL. 



authentic document, if the other parent does not survive, 
or the survivor cannot exercise the pattio poder. 

V. To represent them until 16 years of age, in the acts 
of civil life, and assist them, after that age, in the acts to 
which they are parties, by supplying their consent. 

VI. To reclaim them from whoever illegally detains 
them. 

VII. To demand their obedience, respect, and services 
appropriate to their age and condition. 

Section III. Of the Patrio Poder With Respect to the 
Property of the Children. 

Art. 385. The father, and in his default, the mother, 
are the legal administrators of the property of the chil- 
dren who are under their power, saving the provisions of 
Art. 225. 

Art. 386. They cannot, however, alienate, mortgage, or 
encumber with real onus the immovables of the children, 
nor contract in their name obligations which exceed the 
limits of simple administration, except through necessity, 
or for the evident advantage {tdilidade) of the offspring, 
upon (mediante) the previous authorization of the judge 
(Art. 178, § 6, no. III). 

Art. 387. Whenever in the exercise of the patrio poder, 
the interests of the parents conflict with those of the child, 
the judge, at the request of the child or of the Ministerio 
Publico, shall appoint a special curator for the child. 

Art. 388. The right to plead {oppor) the nullity of th'i 
acts done in violation of the preceding Articles, belongs 
only to : 

I. The child (Art. 178, § 6, no. III). 

II. His heirs (Art. 178, § 6, no. IV) . 

III. The legal representative of the child, if the patrw 



PAEENTAL POWER. 91 

poder ceases during his minority (Arts. 178, § 6, no. IV, 
and 392). 

Art. 389. The usufruct of the property of the children 
is inherent in the exercise of the patrio poder, saving the 
provisions of Art. 225. 

Art. 390. Excepted are : 

I. Property left or given to the child with exclusion of 
the paternal usufruct. 

II. Property left to the child, for a certain and deter- 
mined purpose (fim). 

Art. 391. Excluded from the usufruct as well as from 
the administration of the parents, are : 

I. Property acquired by the illegitimate child, before ac- 
knowledgment. 

II. Property acquired by the child in military servicfi, 
magistracy, or in any other public function. 

III. Property left or given to the child upon conditioii 
of not being administered by the parents. 

IV. Property pertaining to the child in the inheritance 
(Art. 1599), when the parents are excluded from the suc- 
cession (Art. 1602). 

Section IV. Of the Suspension and Extinction of thn 
Patrio Poder. 

Art. 392. The patrio poder is extinguished : 

I. By the death of the parents or of the child. 

II. By emancipation, in the terms of the Single Para- 
graph of Art. 9, General Part. 

III. By majority. 

IV. By adoption. 

Art. 393. The mother who contracts new nuptials, loses, 
with respect to the children of the former marriage (leito), 



92 



CIVIL CODE OF BBAZIL. 



the rights of the patrio poder (Art. 329) ; but, if she again 
becomes a widow (enviudando) , she recovers them. 

Art. 394. If the father, or mother, abuses the patrio 
poder, failing in the paternal duties, or wasting (arruin- 
ando) the property of the child, it is the duty {cahe ao) 
of the judge, upon the request of any relative, or of the 
Ministerio Publico, to adopt such measures as seem to him 
required for the security of the minor and of his property, 
and to suspend the patrio poder for such time as he deems 
proper. 

Single Paragraph. The exercise of the patrio poder is 
also suspended to the father or mother condemned by final 
(irrecorrivel) sentence for a crime the penalty for which 
exceeds two years of prison (prisao). 

Art. 395. By judicial act, the father, or mother, shall 
lose the patrio poder -. 

I. Who punishes the child immoderately. 

II. Who leaves it in abandon. 

III. Who practices acts contrary to morals and good 
customs. 

CHAPTER VII. 
Op Support (Alimentos). 

Art. 396. In accordance with the provisions of this 
Chapter, relatives (parentes) may demand of one another 
the aliments which they may need for their support {para 
suisistir) . 

Art. 397. The right to be provided with support {pres 
tacao de alimentos) is reciprocal between parents and chil- 
dren, and extends (extensivo) to all ascendants, the obliga- 
tion resting upon the nearest in degree, upon the default 
of the others {uns em falta de outros). 



ALIMENTS. 93 

Art. 398. In default of ascendants, the obligation rests 
upon the descendants, observing the order of succession, 
and in default of the latter, upon brothers and sisters 
{irmaos), either of the whole or half blood {assim ger- 
manos, como unilateraes) . 

Art. 399. The aliments are due when the relative who 
claims them, has no property and cannot, by his own labor, 
provide for his maintenance, and the relative of whom 
they are claimed can furnish them without diminution 
(desfalque) of what is necessary for his own support. 

Art. 400. Aliments should be fixed in proportion to the 
necessities of the claimant and to the resources of the per- 
son obligated. 

Art. 401. If, after the aliments are fixed, there should 
come about (sobrevier) a change in the fortune of him who 
supplies them, or in that of him who receives them, the 
interested party may require of the judge, according to the 
circumstances, exoneration, reduction or aggravation of the 
charge. 

Art. 402. The obligation to provide (prestar) aliments 
is not transmitted to the heirs of the debtor. 

Art. 403. The person obligated to supply aliments can 
pension the recipient (alimentando) , or give him board and 
lodging (hospedagem e sustento) at home (em casa). 

Single Paragraph. The judge may, however, if the cir- 
cumstances require, fix the manner of prestation to be ob' 
served {devida). 

Art. 404. The right to aliments cannot be renounced, 
but it need not be exercised {pode-se deixar de exercer) . 

Art. 405. Marriage, although void, and spurious filia- 
tion, whether proven by final sentence not invoked by the 



94 



CIVIL CODE OF BRAZIL. 



child, or by confession, or written declaration of the father, 
make the paternity certain only for the effect of the presta- 
tion of aliments. 

TITLE VI. 
Of Ooardiauship, Curatorship and Absence. 

CHAPTER I. 
Of Ouabdianship (Tutela). 
Section I. Of Guardians (Tutores). 

Art. 406. Minor children are placed in guardianship 
(tutela) : 

I. When the parents are deceased, or adjudged absent. 

II. When the parents lose {decaindo do) the patrio 
poder. 

Art. 407. The right to name the guardian (tutor) per- 
tains to the father, to the mother, to the paternal and to the 
maternal grand-parent (avo). Each one of these persons 
will exercise it in the event of the default or incapacity of 
those which precede them in the order here established. 

Single Paragraph. The appointment must appear (deve 
constar) by testament, or by any other authentic document. 

Art. 408. The appointment of guardian by the father, 
or by the mother, who at the time of death did not have the 
patrio poder, is void. 

Art. 409. In default of a guardian appointed by the 
parents, the guardianship devolves upon (incumhe a) the 
consanguineous relatives of the minor, in this order: 

I. Upon the paternal grandfather, then upon the ma- 
ternal grandfather, and in default of the latter, upon the 
paternal or maternal grandmother. 

II. Upon the brothers and sisters (irmaos), those of 



GUARDIANSHIP. 95 

whole blood (os bilateraes) being preferred to those of half 
blood {os unilateraes) , the brothers being preferred to the 
sisters ; the elder to the younger. 

III. Upon the uncles and aunts, the former being pre- 
ferred to the latter, and the elder to the younger. 

Art. 410. The judge shall appoint a fit and proper 
(idoneo) guardian, resident in the domicile of the minor: 

I. In default of a testamentary, or legitimate, guardian. 

II. When the latter were excluded or excused from the 
guardianship. 

III. When the legitimate and the testamentary guar- 
dian are removed as not being fit and proper (idoneos). 

Art. 411. A single guardian will be given to orphan 
brothers and sisters {irmaos) . In the event, however, that 
more than one is appointed by testamentary disposition, it 
is understood that the guardianship is entrusted to the 
first, and that the others are to succeed him in order of 
their naming, in the event of death, incapacity, excuse, or 
any other legal impediment. 

Single Paragraph. Whoever institutes a minor as his 
heir or legatee, may appoint for him a special curator of 
the property left, although the minor may be under the 
patrio poder or under guardianship. 

Art. 412. Minors abandoned shall have guardians ap- 
pointed by the judge, or shall be gathered into public estab- 
lishments destined to this purpose. 

In default of such establishments, they shall be under 
the guardianship of the persons who, voluntarily and gra- 
tuitously, may take upon themselves the charge of raising 
them. 

Section II. Of Those Incapable to Exercise Giiardianship. 

Art. 413. The following cannot be guardians, and shall 
be removed from guardianship, if they exercise it : 



96 CIVIL CODE OP BEAZIL. 

I. Those who have not the free administration of their 
" property. 

II. Those who, at the time of assuming the guardian- 
ship, are under some obligation to the minor, or have some 
rights to enforce against him; and those whose parents, 
children, or spouses have a demand against the minor. 

III. The enemies of the minor, or of his parents, or who 
have been by the latter excluded from the guardianship. 

IV. Those condemned for the crime of theft, robbery, 
fraud (estellionato) , or falsity, whether or not they have 
complied with the penalty. 

V. Persons of evil behavior (procedimento) , or want- 
ing in probity, and those guilty of abuse of former guar- 
dianships. 

VI. Those who exercise a public function incompatible 
with the good administration of the guardianship. 

Seection III. Of the Excuse of Guardianship. 

Art. 414. The following may excuse themselves from 
guardianship : 

I. Women. 

II. Persons over seventy years of age. 

III. Those who have more than five children under their 
power. 

IV. Those impossibilitated by sickness. 

V. Those living far from the place where the guardian- 
ship has to be exercised. 

VI. Those who already exercise a guardianship or eura- 
torship. 

VII. Soldiers in service. 

Art. 415. One who is not a relative of the minor cannot 
be obliged to accept the guardianship, if there is in the 
place a fit and proper (idoneo) relative, by consanguinity 
or affinity, in condition to exercise it. 



GUARDIANSHIP. 97 

Art. 416. The excuse must be presented within ten days 
after notice {intimagdo) to the person appointed, under 
penalty of being considered to have renounced the right to 
plead it. 

If the reason for the excuse (motivo excusatorio) oc- 
curred after the acceptance of the guardianship, the ten 
days shall be counted from the day when it occurred. 

Art. 417. If the judge does not admit the excuse, the 
appointee shall exercise the guardianship, until the recourse 
interposed is disposed of (emqiianto nao tiver provwnento) , 
and he shall respond at once (desde logo) for the losses and 
damages which the minor may suffer. 

Section IV. Of the Ouaranty of Guardianship. 

Art. 418. The guardian, before assuming the guardian- 
ship, is obliged to specify, in a legal mortgage, which shall 
be inscribed, the necessary immovables as security (para 
acautelar) for the property of the minor, under his admin- 
istration. 

Art. 419. If all the immovables belonging to him are 
not worth the patrimony of the minor, the guardian shall 
supplement {reforgard) the mortgage by real or personal 
{real ou fidejussoria) bond; unless he has no means to do 
so, or is of recognized fitness (idoneidade) . 

Art. 420. The judge responds subsidiarily for any dam- 
ages (pelos prejuizos) which the minor may suffer by rea- 
son of the insolvency of the guardian, for not having re- 
quired of him the legal guaranty, or for not having re 
moved him, as soon as he became suspected. 

Art. 421. The responsibility shall be personal and direct, 
when the judge has not appointed a guardian, or when the 
appointment has not been opportune. 



98 



CIVIL CODE OP BRAZIL. 



Section V. Of the Exercise of Guardianship. 

Art. 422. It is incumbent upon the guardian, under the 
inspection of the judge, to govern (reger) the person of the 
minor, to watch over him and to administer his property. 

Art. 423. The property of the minor shall be delivered 
to the guardian, upon making (mediante) an itemized rec- 
ord {ternw especificado) of the property and its value, 
although the parents may have dispensated it. 

Art. 424. It is the duty (cube ao) of the guardian, with 
respect to the person of the minor : 

I. To direct his education, to defend him, and' to fur- 
nish him aliments, according to his means and condition. 

II. To demand that the judge shall make such orders as 
may be for his good, when the minor is in need of correc- 
tion. 

Art. 425. If the minor possesses property, he shall be 
supported and educated at his own expense, the judge 
determining the amounts which seem to him necessary for 
such purpose, having regard to the income of the ward's 
fortune, when the father or the mother have not fixed 
them. 

Art. 426. It is also the duty of the guardian : 

I. To represent the minor, until he is sixteen years of 
age, in the acts of civil life, and to assist him, after that 
age, in the acts to which he is a party, by supplying his con- 
sent {supprindo-hle o consentimento) . 

II. To receive the income and pensions of the minor. 

III. To provide him (fazer-lhe) with the expenses of 
support and education, as well as those of the administra- 
tion of his property (Art. 433, no. I). 

IV. To alienate the property of the minor intended for 
sale. 



GUARDIANSHIP. 99 

Art. 427. It is also his duty, with the authorization of 
the judge : 

I. To provide the necessary expenses for the preserva- 
tion and improvement of the property. 

II. To receive the amounts due to the orphan and to 
pay his debts. 

III. To accept for him inheritances, legaeiesj or gifts, 
with or without charges {encargos). 

IV. To eom-promise (transigir) . 

V. To lease his real property, by means of public bid- 
ding {mediant e praga publica). 

VI. To sell at public sale (em praga) his movables, the 
preservation of which is not desirable {nao convier), and 
his immovables, in the cases in which it is permitted (Art. 
429). 

VII. To bring suit in all actions and take all measures 
(promover todas as diligencias) for the good of the minor, 
as well as to defend him in the suits brought against him, 
according to the provisions of Art. 84. 

Art. 428. Although with judicial authorization, the 
guardian cannot, under penalty of nullity : 

I. Acquire for himself, or through a third (interposta) 
person, the movable or real property belonging to the 
minor, by private contract or at public auction. 

II. Dispose of the property of the minor by gratuitous 
title. 

III. Constitute himself the grantee of a credit or right 
against the minor. 

Art. 429. The immovables belonging to minors can only 
be sold, when there is manifest advantage, and always at 
public auction (em hasta puhlica). 

Art. 430. Before assuming the guardianship, the guar- 
dian shall declare all that the minor may owe him, under 



100 CIVIL CODE OP BRAZIL. 

penalty of not being able to collect from him while he exer- 
cises the guardianship, unless he proves that he did not 
know of the debt when he assumed it. 

Art. 431. The guardian responds for the damage {pre- 
juizos) which he may cause the ward, through negligence, 
fault (culpa) or deceit (dolo) ; but he has the right to be 
paid for what he legally expends in the exercise of the 
guardianship, and, except in the case of Art. 412, to re- 
ceive compensation (uma gratificagao) for his work. 

Single Paragraph. If the parents of the minor have not 
fixed this compensation, the judge will determine it, up to 
ten per cent, at the maximum, of the net annual income of 
the property administered by the guardian. 

Section VI. Of the Property of Orphans. 

Art. 432. Guardians cannot keep in their possession 
money of their wards, beyond what is necessary for the 
ordinary expenses of their support, education and the ad- 
ministration of their property. 

§ 1. Objects of gold, silver, precious stones, and un- 
necessary movables, shall be sold at public auction, and 
their proceeds converted into bonds {titulos de responsi- 
Mlidade) of the Union or of the States, deposited (recol- 
hido) in the Federal Savings Banks {Caixas Economicas) , 
or applied in the acquisition of immovables, according as 
may be determined by the judge. Money arising from any 
other source shall be applied in the same way. 

§ 2. Guardians respond for delay in the application of 
the above-mentioned sums (valores), paying the legal in- 
terest from the day on which they should have so applied 
them; but this does not relieve them from the obligation, 
which the judge will enforce, of making such application. 



GUARDIANSHIP ACCOUNTSV. V *'. 101 

Art. 433. The amounts (valores) existing" irCtheJPed'eral 
Savings Banks, in the form of the preceding Article, can- 
not be retired, except by order of the judge, and only : 

I. For the expenses of the support and education of the 
ward, and the administration of his property (Art. 427, 
no. I). 

II. To buy real property and titles of the public debt 
of the Union or of the States. 

III. To be employed in accordance with the provisions 
made by the person who has given or left it. 

IV. To be delivered to the orphans, when emancipated 
or attained their majority, or when they are dead, to their 
heirs. 

Section YII. Of the Rendition of Guardianship Accounts. 

Art. 434. Guardians are obliged to render accounts of 
their administration, although the parents of the wards 
should otherwise direct. 

Art. 435. At the end of each year of administration, 
guardians shall submit to the judge the proper statement 
of accounts (balance), which, after being approved, shall be 
annexed to the records {autos) of the inventory. 

Art. 436. Guardians shall render accounts every two 
years, and also when, for any motive, they cease to exer- 
cise the guardianship, and whenever the judge deems it 
proper {conveniente) . 

Single Paragraph. The accounts shall be rendered in 
court (em juizo), and shall be passed upon (julgadas) 
after hearing the interested parties; the guardian shall 
immediately deposit the balances in savings banks, or ac- 
quire immovables, or titles of the public debt. 

Art. 437. Upon the guardianship being ended by eman- 
cipation or majority, the acquittance (quitagao) of the 



102 CIVIL CODE OF BRAZIL. 

minor shall not produce effect before the accounts are ap- 
proved by the judge, until which time the responsibility 
of the guardian remains in its entirety. 

Art. 438. In eases of the death, absence, or interdiction 
of the guardian, the accounts shall be presented by his 
heirs or representatives. 

Art. 439. All expenses which are justified and admit- 
tedly profitable to the minor, will be allowed to the credit 
of the guardian. 

Art. 440. The expenses of rendering the accounts shall 
be paid by the ward {iutelado). 

Art. 441. The balance due by the guardian, as well as 
the balance against the ward, shall draw interest from the 
final approval (julgamento) of the accounts. 

Section VIII. Of the Cessation of the Guardianship. 

Art. 442. The condition of ward (pupillo) ceases : 

I. Upon the majority or emancipation of the minor. 

II. When the minor comes under the patrio poder in 
case of legitimation, acknowledgement or adoption. 

Art. 443. The functions of the guardian cease : 

I. Upon the expiration of the term for which he was 
obliged to serve (Art. 444). 

II. Upon the occurrence of a legitimate excuse (Arts. 
414 to 416). 

III. Upon his removal (Arts. 413 and 445). 

Art. 444. Guardians shall be obliged to serve for the 
space of two years. 

Single Paragraph. They may, however, continue beyond 
that term in the exercise of the guardianship, if they wish 



CURATORSHIP. 103 

and the judge holds it to be for the benefit (conveniente) 
of the minor. 

Art. 445. The guardian shall be removed {destitvddo) 
when he is negligent, unfaithful to his duty {prevari- 
cador), or becomes subject to incapacity. 

CHAPTER II. 
Op Cueatoeship (Curatela). 
Section I. General Dispositions. 

Art. 446. Subject to curatorship (curatela) , a,re : 

I. Insane of all classes (Arts. 448, no. I, 450 and 457). 

II. Deaf-mutes without education which enables them 
to express precisely their will (Arts. 451 and 456). 

III. Spendthrifts (Arts. 459 and 461). 

Art. 447. Interdiction should be demanded (promo- 
vido) : 

I. By the father, mother, or guardian. 

II. By the spouse, or some near relative. 

III. By the Ministerio Publico. 

Art. 448. The Ministerio Publico shall only demand in- 
terdiction : 

I. In case of furious insanity. 

II. If none of the persons designated in the preceding 
Article, nos. I and II, exist or do not demand the inter- 
diction. 

III. If, although existing, they are minors or incap- 
ables. 

Art. 449. In cases in which the interdiction is demanded 
by the Ministerio Publico, the judge will appoint a de- 
fender for the supposed incapable. In the other eases, the 
Ministerio Publico shall be the defender. 



104 CIVIL CODE OP BRAZIL. 

Art. 450. Before rendering judgment (se pronunciar) 
in regard to the interdiction, the judge shall personally 
examine the alleged incapable, and shall hear experts {pro- 
fissionaes). 

Art. 451. Upon ordering the interdiction of the deaf- 
mute, the judge will designate (assignard) the limits of the 
curatorship, according to the mental development of the 
person interdicted (do interdicto). 

Art. 452. The sentence declaring the interdiction pro- 
duces effects immediately, although subject to recourse. 

Art. 453. When the interdiction is decreed, the inter- 
dict is subject to the curatorship, which is governed by the 
provisions of the preceding Chapter, with the restrictions 
of Art. 451 and the modifications of the following Articles. 

Art. 454. The spouse, not judicially separated, is, of 
right, the curator of the other, when interdicted (Art. 455). 

§ 1. In default of spouse, the legitimate curator is the 
father; in default of him, the mother; and in default of 
her, the descendant of lawful age (maior). 

§ 2. Among the descendants, the nearer precede the 
more remote, and, among those of the same degree, the 
males precede the females. 

§ 3. In default of the persons mentioned, the judge shall 
choose the curator. 

Art. 455. When the spouse is the curator, he or she 
shall not be obliged to present the annual balances, nor to 
make an inventory, if the regimen of the marriage is that 
of communion, or if the property of the incapable is de- 
scribed in a public instrument, whatever be the regimen 
of the marriage. 



CUEATORSHIP. 105 

§ 1. If the husband is the curator, the provisions of 
Arts. 233 to 239 will be observed. 

§ 2. If the wife is the curatrix, the provisions of Art. 
251, Single Paragraph, will be observed. 

§ 3. If it is the father, or the mother, the provisions 
of Art. 435 have no application. 

Art. 456. If there are means of educating the deaf-mute, 
the curator shall provide for his entrance into a proper 
establishment. 

Art. 457. Insane persons shall also be placed in an 
adequate establishment, whenever it is inconvenient to 
keep them at home or their treatment requires it. 

Art. 458. The authority of the curator shall extend to 
the person and property of the children under ward (cura- 
telado), born or to be born (Art. 462, Single Paragraph). 

Section II. Of Spendthrifts {Prodigos). 

Art. 459. The interdiction of the spendthrift [prodigo) 
only deprives him, without a curator, from borrowing, com- 
promising, giving acquittance, alienating, mortgaging, 
suing or being sued, and doing, in general, acts which are 
not of simple administration. 

Art. 460. The spendthrift is only subject to interdiction 
when he has a spouse or legitimate ascendants or descend- 
ants who demand it. 

Art. 461. The interdiction shall be removed, when the 
incapacity which occasioned it ceases, or the relatives desig- 
nated in the preceding Article no longer exist. 

Single Paragraph. Only the spendthrift himself and 
the persons designated in Art. 460, can plead (arguir) the 
nullity of the acts of the interdict during the interdiction. 



106 CIVIL CODE OF BRAZIL. 

Section III. Of the Curatorship of the Unborn. 

Art. 462. A curator shall be given to the unborn {nasci- 
twro), if the father dies while the wife is pregnant and has 
not the patrio poder. 

Single Paragraph. If the wife is interdicted, her curator 
shall be that of the unborn (Art. 458). 

CHAPTEE III. 

Op Absence. 
Section I. Of the Guardianship of Absentees. 

Art. 463. When a person disappears from his domicile, 
without notice being had of him, if he has not left a repre- 
sentative or procurator authorized (a quern toque) to ad- 
minister his property, the judge, upon the request of any 
interested party, or of the Ministerio Publico, shall appoint 
a curator for him. 

Art. 464. A curator will also be appointed, when the 
absentee (ausente) left a mandatory, who does not wish 
or cannot exercise or continue the mandate. 

Art. 465. The judge who appoints the curator shall de- 
termine his powers and obligations, according to the cir- 
cumstances, observing, so far as applicable, the provisions 
in respect to guardians and curators. 

Art. 466. The spouse of the absentee, when not judi- 
cially separated, shall be his legitimate curator. 

Art. 467. In default of spouse, the curatorship {cura- 
doria) of the property of the absen1i,ee belongs {incunibe) 
to the father, to the mother, to the descendants, in this 
order, if there is no impediment which prevents them from 
exercising the charge. 



ABSENTEES. 107 

Single Paragraph. Among the descendants, the nearest 
precede the more remote, and, among those of the same 
degree, the males are preferred to the females. 

Art. 468. In cases of collection {arrecadagao) of the 
inheritance or the share {quinhao) of absent heirs, the pro- 
visions of this Code, Arts. 1591 to 1594, in regard to the 
appointment of a curator, shall be observed. 

Section II. Of Provisional Succession. 

Art. 469. When two years have passed, without any- 
thing being known of the absentee, if he left no repre- 
sentative or procurator, or, after four years, if he left 
them, the interested parties may require that his succesiou 
be provisionally opened. 

Art. 470. The following are considered, for this effect, 
interested parties : 

I. The spouse not judicially separated. 

II. The presumed legitimate, or the testamentary, heirs. 

III. Those having a right, subordinated to the condi- 
tion of death, upon the property of the absentee. 

IV. Creditors holding obligations due and unpaid. 

Art. 471. The sentence which determines the opening of 
the provisional succession, shall produce effect only six 
months after it is published in the press ; but, as soon as it 
becomes final {logo que passe em julgado), the opening of 
the testament, if any, and the inventory and partition of 
the property, shall proceed, as if the absentee were de- 
ceased. 

§ 1. When the period of Art. 469 is ended, and there 
should be absolutely no persons interested in the provi- 



108 CIVIL CODE OF BRAZIL. 

sional succession, it is the duty of the Ministerio Publico 
to demand it {requerel-a) of the competent judge. 

§ 2. If no heir or interested party appears as soon as 
the sentence ordering the provisional succession to be 
opened becomes final {passe em jvlgado), the collection of 
the property of the absentee shall proceed judicially, in 
the form established in Arts. 1591 to 1594. 

Art. 472. Before the partition the judge shall order the 
conversion of the movable property, subject to deteriora- 
tion or loss (extravio), into immovables, or into titles of 
the public debt of the Union or of the States (Art. 477). 

Art. 473. The heirs admitted (immitidos) into the pos- 
session of the property of the absentee shall give guaranties 
for the restitution of it, by means of pledges {penhores), 
or mortgages, equivalent to the respective shares {quin- 
hoes) . 

Single Paragraph. Any one having a right to the pro- 
visional possession, but who cannot furnish the guaranty 
required by this Article, shall be excluded, and the prop- 
erty which he should receive (que Ihe deviam caber) shall 
be kept under the administration of the curator, or of an- 
other heir designated by the judge, who can furnish the 
said guaranty (Art. 478) . 

Art. 474. In the partition, the immovables shall be en- 
trusted (confiados) in their entirety to the most proper 
(mais idoneos) of the provisional successors. 

Art. 475. The immovables of the absentee can only be 
alienated, except by disappropriation, when the judge 
orders it, in order to avoid its ruin, or when it is proper to 
convert it into titles of the public debt. 

Art. 476. The provisional successors, in possession of 



ABSENTEES. 109 

the property, shall actively and passively represent the 
absentee; so that pending actions, and those which the 
absentee may in the future bring, shall run against them. 

Art. 477. The descendant, ascendant, or spouse, who is 
provisional successor of the absentee, shall own {fard sens) 
aU the fruits and income (rendimentos) of the property 
which pertain to the latter (qiie a este couherem). The 
other successors, however, must capitalize one-half of these 
fruits and income, according to the provisions of Art. 472, 
in accordance with the representative of the Ministerio 
Publico, and render annually accounts to the competent 
judge. 

Art. 478. The heir excluded, according to Art. 473, 
Single Paragraph, from the provisional possession, may, 
upon proof that he is without means, require that one half 
of the income of the share which he should receive, shall be 
delivered to him. 

Art. 479. If during the provisional possession, the exact 
time of the decease of the absentee be proven, the succes- 
sion shall be considered opened, as of that date, in favor of 
the heirs who were such at that time. 

Art. 480. If the absentee should appear, or his existence 
be proven, after the provisional possession is established, 
the advantages of the successors admitted to it shall at 
once cease, they being, however, obliged to take the neces- 
sary precautionary (assecuratorias) measures until the de- 
livery of the property to its owner. 

Section III. Of the Definitive Succession. 

Art. 481. Thirty years after the sentence which granted 
the opening of the provisional succession, becomes final 
(passada em julgado), the interested parties may demand 



110 CIVIL CODE OF BRAZIL. 

definitive succession and the release (levantamento) of the 
bonds {caugdes) furnished. 

Art. 482. The definitive succession may also be de- 
manded, upon proof that the absentee is eighty years of 
age, and that the last news of him dates back five years. 

Art. 483. If the absentee returns within ten years from 
the opening of the definitive succession, or any of his de- 
scendants or ascendants, the former or the latter shall have 
only the property existing in the condition in which it is, 
that subrogated in its place, or the price which the heirs 
and other interested parties may have received for that 
alienated after that time. 

Single Paragraph. If within the ten years of this Ar- 
ticle, the absentee does not return, and no interested party 
demands the definitive succession, the full ownership of the 
properties collected shall pass to the State or to the Fed- 
eral District, if the absentee was domiciled in either of 
these jurisdictions, or to the Union, if he was domiciled in 
territory not yet constituted into a State. 

Section IV. Of the Effects of Absence With Respect to the 
Bights of Family. 

Art. 484. If the absentee left minor children, and the 
other spouse has deceased, or has no right to the exercise 
of the patrio poder, these children shall be proceeded with 
as if they were orphans without father and mother. 



POSSESSION. Ill 



BOOK II. 

OF THE RIGHTS OF THINGS. 



TITLE I. 
Of Possession (Posse). 

CHAPTER I. 

Of Possession and Its Classification. 

Art. 485. Every one who has, de facto, the exercise, 
whether plenary or not, of any of the powers inherent in 
dominion, or ownership (propriedade) , is considered a pos- 
sessor. 

Art. 486. "When, by force of obligation, or of law 
(direito), in cases such as that of usufructuary, pignora- 
tive creditor, or lessee (locatario), direct possession is tem- 
porarily exercised, this does not annul the indirect posses- 
sion of the persons from whom the direct possession is had. 

Art. 487. One who, being in a relation of dependence 
upon another, holds (conserva) the possession in the name 
of the latter and in compliance with his orders or instruc- 
tions, is not a possessor. 

Art. 488. If two or more persons possess an undivided 
thing or are in the enjoyment of the same right, each one 
may exercise possessory rights over the common object, so 
long as they do not exclude those of the other co-possessors. 

Art. 489. Possession (posse) is just, which is not violent, 
clandestine, or precarious. 

Art. 490. Possession is in good faith (de boa fe), if the 
possessor is ignorant of (ignora) the defect (vicio), or the 



112 CIVIL CODE OF BRAZIL. 

obstacle which impedes his acquisition of the thing, or of 
the right possessed. 

Single Paragraph. The possessor with just title has for 
himself the presumption of good faith, saving proof to the 
contrary, or when the law expressly does not admit this 
presumption. 

Art. 491. Possession in good faith only loses this char- 
acter in the case and from the moment that the circum- 
stances create the presumption {fagam presumir) that the 
possessor is not ignorant {nao ignora) that he possesses 
wrongfully {indevidamente) . 

Art. 492. Saving proof to the contrary, possession is 
understood to retain (manter) the same character, with 
which it was acquired. 

CHAPTER II. 

Of the Acquisition of Possession. 

Art. 493. Possession is acquired : 

I. By the apprehension of the thing, or by the exercise 
of the right. 

II. By the fact of disposing {se dispor) of the thing, or 
of the right. 

III. By any of the modes of acquisition in general. 
Single Paragraph. The provisions of this Code, Arts. 

81 to 85, are applicable to the acquisition of possession. 

Art. 494. Possession may be acquired : 

I. By the person himself who claims it. 

II. By his representative or procurator. 

III. By a third person without mandate, depending 
upon ratification. 

IV. By "constituto possessorio". 



POSSESSION. 113 

Art. 495. Possession is transmitted with the same char- 
acters to the heirs and legatees of the possessor. 

Art. 496. The universal successor continues by right 
the possession of his antecessor, for all legal effects. 

Art. 497. Acts of mere permission or tolerance do not 
constitute {nao induzem) possession, nor do violent or 
clandestine acts authorize its acquisition, except after the 
violence or secrecy (clandestinidade) has ceased. 

Art. 498. The possession of an immovable raises the pre- 
sumption, until proof to the contrary, of that of the mov- 
ables and objects which are thereon. 

CHAPTER III. 

Of the Effects op Possession. 

Art. 499. The possessor has the right to be maintained 
in possession, in ease of disturbance, and restored, in case 
of dispossession (esbulho). 

Art. 500." When more than one person claims to be pos- 
sessor, the one who retains [que detiver) the thing shall be 
maintained provisionally in it, unless it is manifest that he 
obtained it from some of the others in a vicious manner. 

Art. 501. The possessor, who has a just fear of being 
molested in his possession, may request {impetrar) the 
judge to secure him from imminent violence, under warn- 
ing of penalty to whoever transgresses the order (pre- 
ceito). 

Art. 502. The possessor disturbed or dispossessed, may 
maintain himself or restore himself by his own force, pro- 
vided that he does so at once. 

Single Paragraph. The acts of defense or of retaking 



114 CIVIL CODE OP BRAZIL. 

(desforgo), cannot go beyond what is indispensable for the 
maintenance or recovery of possession. 

Art. 503. The possessor maintained in or restored to 
possession, has the right to indemnization of the damages 
iprejuizos) suffered, the restitution being effected at the 
cost of the dispossessor (esbulhador) , in the same place of 
the dispossession (es6ttJ/io). 

Art. 504. The possessor may bring the action of dispos- 
session (eslulho), or for indemnization, against the third 
person who received the thing taken (eshulhada) , know- 
ing that it was so taken. 

Art. 505. The plea of ownership (dominio), or of other 
right to the thing, does not prevent {nao dbsta) the main- 
tenance or restoration of possession. In the meanwhile, the 
possession should not be adjudged in favor of one to whom 
the ownership evidently does not belong. 

Art. 506. When the possessor has been dispossessed (es- 
bulhado), he shall be restored to possession, as soon as he 
demands it, without the author of the dispossession being 
heard before the restitution. 

Art. 507. No possessor shall be judicially maintained in 
or restored to a possession of less than a year and a day, 
except as against those who have not had a better posses- 
sion. 

Single Paragraph. Better possession is understood to 
be that which is founded upon just title; in default of 
title, or when the titles are equal, the older; if of the same 
date, the actual possession. But, if all are doubtful, the 
thing shall be sequestered, until it is determined to whom 
it belongs {emquanto se ndo apurar a quern toque). 

Art. 508. If the possession was for more than a year and 



EFFECTS OP POSSESSION. 115 

a day, the possessor shall be maintained summarily, until 
he is defeated {convencido) by the ordinary means. 

Art. 509. The provisions of the preceding Articles do 
not apply to continuous non-apparent servitudes, nor to 
the discontinuous, except when the respective titles derive 
(provierem) from the possessor of the servient estate, or 
from those of whom the latter holds it. 

Art. 510. The possessor in good faith has the right, so 
long as it continues (durar), to the fruits received. 

Art. 511. The fruits pending at the time when the good 
faith ceases must be restored, after deducting the expenses 
of their production and custody (custeio). The fruits 
gathered with anticipation must also be restored. 

Art. 512. The natural and industrial fruits are consid- 
ered as gathered and received as soon as they are separated. 
The civil fruits are considered as received day by day. 

Art. 513. The possessor in bad faith {de md fe) re- 
sponds for all the fruits gathered and received, as well as 
for those which, through his fault, he failed to receive 
{deixou de perceier), from the moment that he became 
guilty of bad faith (em que se constituiu de md /e) ; he has 
the right, however, to the expenses of production and cus- 
tody. 

Art. 514. The possessor in good faith does not respond 
for the loss or deterioration of the thing, for which he did 
not give cause. 

Art. 515. The possessor in bad faith responds for the 
loss or deterioration of the thing, although it is accidental, 
unless it is proven that it would have happened in the 
same way if it had been in the possession of the claimant 
(reivindicante) . 



116 CIVIL CODE OF BRAZIL. 

Art. 516. The possessor in. good faith has the right to 
indemnization for the necessary and useful improvements, 
as well as the right, with respect to voluptuary improve- 
ments, if he is not paid for them, to remove them, when 
he can do so without detriment to the thing. For the 
value of necessary and useful improvements, he may exer- 
cise the right of retention. 

Art. 517. The possessor in bad faith shall be reimbursed 
only for necessary improvements ; but he has not the right 
of retention for the amount of them, nor that of removing 
the voluptuary improvements. 

Art. 518. The improvements are set off against the dam- 
ages {compensam-se com os damnos), and only obligate for 
reimbursement, if at the time of the eviction they yet exist. 

Art. 519. The claimant (reivindicante) who is obliged 
to indemnify the improvements, has the right to choose 
{optar) between their actual value and their cost. 

CHAPTER IV. 

Op the Loss of Possession. 

Art. 520. The possession of things is lost : 

I. By abandonment. 

II. By tradition. 

III. By their loss or destruction, or by their being 
placed out of commerce. 

IV. By the possession of another, although against the 
will of the possessor, if the latter is not maintained or re- 
stored within proper time (em tempo competente). 

V. By "constituto possessorio". 

Single Paragraph. The possession of rights is lost by it 
becoming impossible to exercise them, or by not exercising 
them for a time sufficient for them to prescribe. 



OWNERSHIP. 117 

Art. 521. One who has lost, or from whom has been 
stolen, a movable thing, or a title to bearer, may recover it 
from the person who detains it, saving to the latter the 
regressive right against the person who transferred them 
to him. 

Single Paragraph. If the object is bought at a public 
auction {leilao), fair or market, the owner, who claims its 
restitution, is obliged to pay the possessor the price for 
which he bought it. 

Art. 522. Possession is only considered lost by an ab- 
sentee, when, having notice of the occupation, he refrains 
from retaking the thing, or, attempting to recover it, is 
violently repelled. 

CHAPTER V. 

Of Possessory Protection. 

Art. 523. The actions for maintenance and for dispos- 
session shall be summary, when brought within a year and 
a day from the disturbance or dispossession; and, passed 
that time, ordinary, without losing, however, their pos- 
sessory character. 

Single Paragraph. The period of a year and a day does 
not run so long as the possessor defends his possession, re- 
establishing the situation de facto anterior to the disturb- 
ance or dispossession. 

TITLE II. 

Of Ownership (Propriedade). 

CHAPTER I. 

Op Ownership in General. 

Art. 524. The law assures to the owner (proprietario) 
the right to use, enjoy and dispose of his property (iens), 



118 CIVIL CODE OP BRAZIL. 

and to recover it from the power of whoever unjustly 
possesses it. 

Single Paragraph. Literary, scientific and artistic prop- 
erty (propriedade) shall be regulated according to the pro- 
visions of Chapter VI of this Title (Arts. 649, et seq.). 

Art. 525. Ownership is full {plena), when all its ele- 
mentary rights are reunited in that of the owner; limited 
when it has a real onus, or is defeasible (resoluvel). 

Art. 526. The ownership of the soil embraces whatever 
is above and below it to whatever height or depth, and 
which is useful to its exercise ; the owner cannot, however, 
prevent works which may be undertaken at such a height 
or depth that he has no interest in preventing them. 

Art. 527. The ownership (dominio) is presumed to be 
exclusive and unlimited, until proof to the contrary. 

Art. 528. The fruits and other products of the thing 
belong, even when separated, to its owner, except when, for 
special juridical motive, they must go to another {hou- 
verem de caber a outrem). 

Art. 529. The owner, or the renter {inquilino), of the 
estate (predio), on which some one has the right to con- 
struct (fazer) works, may, in case of imminent damage 
{damno), require of the author of them the neeessarj' 
securities against the eventual damage (prejuizo). 

CHAPTER II. 

Op the Ownership of Immovables. 

Section I. Of the Acquisition of Immovable Ownership. 

Art. 530. The ownership of immovables (propriedade 
immovel) is acquired : 



ACQUISITION OP OWNERSHIP. 119 

I. By transcription of the title of transfer in the reg- 
ister of immovables. 

II. By accession. 

III. By usueaption. 

IV. By hereditary right. 

Section II. Of Acquisition By Transcription of Title. 

Art. 531. Titles transferring immovable ownership by 
act between living persons {acto entre vivos), are subject to 
transcription in the respective register. 

Art. 532. The following shall also be transcribed : 

I. Judgments {jtdgados) in divisory actions, by which 
an end is put (se puzer termo) to the indivision. 

II. Sentences which, in inventories and partitions, ad- 
judicate real property in payment of the debts of the in- 
heritance. 

III. Sales at auction (a arrematagao) and adjudica- 
tions at public auction (em hasta puhlica). 

Art. 533. The acts subject to transcription (Arts. 531 
and 532, nos. II and III), do not transfer the ownership 
(dominio) except from the date on which they are tran- 
scribed (Arts. 856, 860, Single Paragraph). 

Art. 534. The transcription shall be dated of the day 
on which the title is presented to the ofScial of the register, 
who shall make a note of it (o prenotar) in the protocol. 

Art. 535. If the grantor {alienante) should fail or be^ 
come insolvent between the notation of the title and its 
transcription through the delay {por atrazo) of the ofScial, 
or a doubt adjudged unfounded (ou duvida julgada im- 
procedente) , the required transcription shall notwithstand- 
ing be made, and in this case, it relates back (retroage) to 
the date of the annotation. 



120 CIVIL CODE OF BRAZIL. 

Single Paragraph. If, however, at the time of the trans- 
cription the immovable has not yet been paid for, the 
grantee (adquirente) , as soon as he is notified of the failure 
or has knowledge of the insolvency of the grantor {alien- 
ante), shall deposit the price in court (em juizo). 

Rection III. Of Acquisition by Accession {Accessao). 

Art. 536. Accession may take place {pode dar-se) : • 

I. By the formation of islands. 

II. By alluvion (alluvido). 

III. By avulsion (avulsao). 

IV. By abandonment of the channel {alveo). 

V. By the construction of works or plantations. 

7. Of Islands. 

Art. 537. Islands situated in non-navigable rivers be- 
long to the adjacent riparian proprietors, the following 
rules being observed : 

I. Those which are formed in the middle of the river, 
are considered accretions (accrescimos) to the adjacent 
riparian lands on both banks, in the proportion of their 
frontages (testadas), up to the line which divides the 
channel into two equal parts. 

II. Those which are formed between this line and one 
of the banks are considered accretions to the adjacent 
riparian lands on the same side. 

III. Those which are formed by the formation {desdo- 
hramento) of a new arm of the river continue to belong 
to the proprietors of the lands at the expense of which 
they were formed. 

//. Of Alluvion. 

Art. 538. The accretions formed by natural deposits and 
fills or bars {aterros), or by the turning away {desvio) of 



ALLUVION AND AVULSION. 121 

the waters of the river, although the latter are navigable, 
belong to the owners of the marginal lands. 

Art. 539. The owners of lands which border upon stand- 
ing {dormentes) waters, such as lakes and ponds (tanques), 
do not acquire the soil uncovered by the withdrawal of the 
waters, nor do they lose those which they invade. 

Art. 540. When the alluvial land is formed in front of 
estates of different owners, it shall be divided between 
them, in proportion to the frontage {testada) of each ono 
upon the old bank; the provisions with respect to naviga- 
tion being respected. 

III. Of Avulsion. 

Art. 541. When, by violent natural force, a portion of 
land is separated (se destacar) from one estate and is 
joined to another, the owner of the former may reclaim it 
of the latter; the latter has the option between consenting 
to the removal of the accreted part, or of indemnifying the 
claimant (Art. 178, § 6, no. XI). 

Art. 542. If no one claims within a year, such portion 
of land shall be considered definitely incorporated into the 
estate where it is found, the former owner losing the right 
to recover it or to be indemnified (Art. 178, § 6, no. XI). 

Art. 543. When the avulsion is of a thing not suscep- 
tible of natural adherence, the provisions in respect to lost 
things shall be applied. 

IV. Of Abandoned Channel 

Art. 544. The abandoned channel of a public or private 
river belongs to the riparian proprietors of the two mar- 
gins, without the owners of the lands through which the 
waters opened a new course having right to any indemni- 



122 CIVIL CODE OF BRAZIL. 

zation. It is understood that the marginal estates extend 
to the middle of the channel. 

V. Of Constructions and Plantations. 

Art. 545. Every construction or plantation existing on 
an estate (terreno), is presumed made by the proprietor 
and at his cost, until the contrary is proven. 

Art. 546. He who sows, plants, or builds on his own 
land, with seeds, plants or materials of another (alheios), 
acquires the ownership of them; but he is obliged to pay 
him their value, besides responding for losses and damages, 
if he acted in bad faith. 

Art. 547. He who sows, plants or builds upon the land 
of another, loses, to the profit of the owner, the seeds, 
plants and constructions, but he has the right to indemniza- 
tion. He shall not have it, however, if he acted in bad 
faith, in which event he may be constrained to replace the 
things in their former condition and to pay the damages 
(prejuizos). 

Art. 548. If both act in bad faith, the owner will ac- 
quire the seeds, plants and constructions, with the charge, 
however, to reimburse the value of the improvements. 

Single Paragraph. Bad f aiith in the owner is presumed, 
when the work of construction, or labor, is done in his pres- 
ence and without his objection {impitgnagao) . 

Art. 549. The provisions of the preceding Article apply 
also to the case where the seeds, plants or materials do not 
belong to the one who in good faith employed them on the 
soil of another. 

Single Paragraph. The owner of the seeds, plants or 
materials may collect the indemnization due from the owner 
of the soil, when he cannot have it from the planter or con- 
structor. 



USUCAPTION. . 123 

Section IV. Of Usucaption. 

Art. 550. He who, for thirty years, without interrup- 
tion or opposition, possesses an immovahle as his own, shall 
acquire the ownership (dominio) of it, independently of 
title and good faith, which, in such case, are presumed ; and 
he may require the judge to so declare by sentence, which 
shall serve him as a title for transcription in the register of 
immovables. 

Art. 551. He also acquires the ownership {dominio) of 
the immovable, who, for ten years as between persons pre- 
sent, or twenty years between absentees, possesses it as his 
own, continuously and without opposition {incontestada- 
7nente), with just title and good faith. 

Single Paragraph. Those who dwell {as moradores) in 
the same district (municipio) are reputed as present, and 
as absentees those who inhabit different municipios. 

Art. 552. The possessor, for the purpose of counting the 
time required by the preceding Articles, may add to his 
possession that of his antecessor (Art. 496), provided that 
both have been continuous and pacific. 

Art. 553. The causes which prevent {ohstam), suspend 
or interrupt prescription, also are applied to usucaption 
(Art. 619, Single Paragraph), and the provisions in re- 
spect to the debtor are extended to the possessor. 

Section V. Of the Bights of Vicimage {Visinhanga) . 

I. Of the Nocive Use of Property. 

Art. 554. The owner or renter of an estate has the right 
to prevent (impedir) that the ill use (mdo uso) of the 
neighboring property shall prejudice the safety, the quiet 
and the health of those who inhabit it. 



124 CIVIL CODE OF BRAZIL. 

Art. 555. The proprietor has the right to require of the 
owner of the neighboring estate its demolition, or necessary 
reparation, when it threatens ruin, as well as that he give 
bond for imminent damage. 

//. Of Boundary Trees. 

Art. 556. The tree whose trunk is on the dividing line, 
is presumed to belong in common to the owners of the ad- 
joining {confinantes) estates. 

Art. 557. The fruits which fall from a tree onto the 
neighboring land belong to the owner of the soil where 
they fall, if this is private property. 

Art. 558. The roots and branches of trees which extend 
beyond the limits of the estate, can be cut, up to the vertical 
dividing plane, by the proprietor of the land invaded. 

III. Of Forced Passage. 

Art. 559. The owner of a rustic or urban estate (predio), 
which is enclaved in another, without exit {sahida) upon a 
public road, spring (fonte) or port, has the right to re- 
quire the neighbor to give him passage, the route being 
judicially fixed if necessary. 

Art. 560. The owners of the estates through which pas- 
sage is established for the enclaved estate, have the right 
to full (cabal) indemnization. 

Art. 561. The proprietor who, through his own fault, 
loses the right of transit through the contiguous estates, 
may require a new communication with the public way, 
upon paying double the value of the first indemnization. 

Art. 562. Private passages and pathways {atravessa- 
doiros), through properties also private, which do not lead 



WATER RIGHTS. 125 

to springs, bridges, or public places, haviDg no other means 
of access (serventia) , do not constitute a servitude (ser- 
vidao). 

IV. Of Waters. 

Art. 563. The owner of the lower estate {predio in- 
ferior), is obliged to receive the waters which run naturally 
from the higher {superior). If the owner of the latter con- 
structs works of art, in order to facilitate the drainage 
(escoamento) , he shaU proceed in sueh way as not to make 
the natural and previous condition of the other worse- 
Art. 564. When waters, artificially carried to the 
superior estate run from it to the inferior, the owner of the 
latter may demand that they be turned away, or that he be 
indemnified for the damage he may suffer. 

Art. 565. The proprietor of a spring not confined {nao 
captada), cannot, after the necessities of his consumption 
are satisfied, impede the natural course of the waters 
through the inferior estates. 

Art. 566. Pluvial waters which run through public 
places, as well as the waters of public rivers, may be util- 
ized by any proprietor of lands through which they pass, 
upon observing the administrative regulations. 

Art. 567. It is permitted to anyone, upon previous in- 
demnization to the proprietors prejudiced, to canalize, for 
agricultural or industrial uses (proveito) , the waters to 
which he has a right, through the rustic estates of others, 
provided the same are not residence enclosures (chacaras), 
or walled places, country homes {quintaes), court-yards 
(pateos), truck-gardens (hortas), or flower-gardens (jar- 
dins) . 

Single Paragraph. The prejudiced proprietor, in such 
case, has the right also to indemnization for the damages 



126 CIVIL CODE OP BRAZIL, 

which may accrue to him in the future, through the infiltra- 
tion or irruption of the waters, as well as through the de- 
terioration of the works destined to canalize them. 

Art. 568. Questions relative to the servitude of waters 
and to the corresponding indemnizations, shall he litigated 
(pleiteadas) in summary action. 

V. Of the Limits Between Estates. 

Art. 569. Every proprietor may oblige his adjoining 
owner (o seu confinante) to proceed with him to the de- 
marcation between the two estates, to remark indistinct 
lines {a/uwentar rumos apagados), and to renew destroyed 
or rained landmarks, the respective expenses being shared 
proportionally between the interested parties. 

Art. 570. In case of confusion, the limits, in default of 
other means, shall be determined in conformity with the 
possession; and if this is not proven, the land in dispute 
shall be divided between the estates proportionally, or, if 
a convenient division is not possible, it shall be adjudicated 
to one of them, upon indemnization to the prejudiced pro- 
prietor. 

Art. 571. The adjoining proprietors have the right to 
use in common the open space (intervallo) , wall, fence, or 
any other dividing work between the two estates, it being 
presumed, until proof to the contrary, to belong to both. 

VI. Of the Right to Construct. 

Art. 572. The proprietor may erect on his land the con- 
structions which he pleases {que Ihe aprouver), saving the 
rights of the neighbors and the administrative regulations. 

Art. 573. The proprietor may enjoin {embargar) the 
construction of an estate (predio) which invades the area 



CONSTRUCTIONS. 127 

of his own, or throws gutter water {deite gotteiras) upon 
it, as well as of one in which, at less than one meter and a 
half from his own, a window is opened, or an open skylight 
(eirado), terrace or veranda is made. 

§ 1. The provisions of this Article do not embrace sky- 
lights and air-vents {frestas, seteiras, ou ocidos para Itiz), 
not more than ten centimeters long by ten wide. 

§ 2. The vents {vaos), or openings for light do not pre- 
scribe against the neighbor, who, at all times, if he wishes, 
may build his house or abutting wall (contramuro) , al- 
though it may shut the light out from them. 

Art. 574. The provisions of the preceding Article are 
not applicable to estates (predios) separated by a highway, 
road, street, or any other public passage. 

Art. 575. The proprietor shall build in such manner 
that the edge (beiral) of his roof shall not discharge {dis- 
peje) upon the neighboring estate, leaving between it and 
the eaves (beiral), when it cannot be avoided in any other 
way, an interval of at least ten centimeters. 

Art. 576. The owner who consents (annuir) to a win- 
dow, bay (sacada), or gutter over his property, can re- 
quire it to be removed (desfaga) only after the lapse of a 
year and a day from the conclusion of the work. 

Art. 577. New constructions, or additions (accrescinnos) 
to existing ones, cannot be made on a rustic estate without 
the license of the neighbor, within a meter and a half from 
the common limit. 

Art. 578. Stables, corrals, pigstys, dungheaps, and in 
general, constructions which discommode or prejudice the 
neighborhood, shall keep the distance fixed by the municipal 
ordinances (posturas) and health regulations. 



128 CIVIL CODE OF BRAZIL. 

Art. 579. In cities, villages and towns the buildings of 
which are required to be kept in alignment, the owner of a 
vacant lot {terreno vago) may build upon it, setting his 
joists (madeirando) into the dividing wall of the contiguous 
estate, if it can support the new construction ; but he will 
have to reimburse the neighbor one half the value of the 
wall and of the corresponding ground. 

Art. 580. The adjoining owner {confinante) who builds 
first, can set the dividing wall, up to one half its thickness, 
on the contiguous land, without losing thereby the right to 
have one half its value, if the neighbor sets his joists (a 
travejar) in it (Art. 579). In this case, the former will 
fix the length of the foundations, as well as the depth if the 
land is not of rock. 

Single Paragraph. If the dividing wall belongs to one 
of the neighbors, and is not strong enough (nao tiver capa- 
cidade) to support the joists of the other, the latter cannot 
make his foundation at its base {ao pe), without giving 
bond to the former for the risk to which the insufficiency 
of the new work may expose the previous construction. 

Art. 581. The joint-owner (condominio) of the party 
wall iparede meia) may utilize it up to the middle of its 
thickness, not exposing to risk the safety or the separation 
of the two estates, and advising the other party {consort e) 
of the works which he there intends to make. He cannot, 
however, without the consent of the other, make closets 
{armarios) or similar works in the party wall, correspond- 
ing to others of the same kind already made on the oppo- 
site side. 

Art. 582. The owner of an estate, threatened by the 
construction of chimneys, fireplaces or furnaces on the con- 
tiguous estate, may, although the wall be common, enjoin 
{emhargar) the work and require a bond against the pos- 
sible damages (prejuizos). 



CONSTRUCTIONS. 129 

Art. 583. It is not lawful to support {encostar a) against 
the party wall, or the wall of thelieighbor, without his per- 
mission, furnaces, ovens or forges, hygienic apparatus, 
ditches, drain-pipes, deposits of salt, or of any other cor- 
rosive substances, or those susceptible of producing damag- 
ing infiltrations. 

Single Paragraph. Ordinary chimneys and cooking fur- 
naces are not included in the prohibition of this and of the 
preceding Article. 

Art. 584. Constructions capable of polluting or render- 
ing unfit for ordinary use the water of a well or spring of 
another, pre-existing them, are prohibited. 

Art. 585. It is not permitted to make excavations which 
draw necessary water from the well or spring of another. 
It is, however, permitted to make them, if they scarcely 
{a-penas) diminish the supply of the well or fountain of 
the neighbor, and are not deeper than those of the latter, 
in relation to the level of the sheet of water. 

Art. 586. Everyone who violates the provisions of Arts. 
580 and following Articles, is obliged to demolish the con- 
structions made, responding for losses and damages. 

Art. 587. Every proprietor is obliged to consent that 
his neighbor, upon previous notice, may enter upon his es- 
tate and tempor::ri]y nse it, when it is indispensable to the 
reparation or cleaning, construction or reconstruction of 
his house. But, if any damage arises from it, he shall have 
the right to be indemnified. 

Single Paragraph. The same provisions apply to the 
cases of cleaning or repairing of drains, gutters and hy- 
gienic apparatus, as well as of wells and springs already 
existing. 



130 CIVIL CODE OP BRAZIL. 

VII. Of the Eight of Enclosure ( Tapagem) . 

Art. 588. The proprietor has the right to fence, wall, 
ditch or enclose (tapar) in any way his estate, urban or 
rural, upon conforming with the following dispositions: 

§ 1. The divisory enclosures (tapumes) between proper- 
ties are presumed common, the proprietors of the adjoining 
immovables being obliged to share in equal parts the ex- 
penses of their construction and preservation. 

§2. By "enclosures" (tapimies) are understood living 
hedges (sehes), fences of wire or wood, ditches or embank- 
ments (banquetas) , or any other means of separation of the 
lands, observing the dimensions established in municipal 
ordinances, in accordance with the customs of each locality, 
provided that they prevent (impegam) the passage of large 
animals, such as cows, horses and mules. 

§ 3. The obligation to fence properties in order to keep 
within their limits domestic birds and animals, such as 
goats, hogs and sheep, which require special enclosures, 
shall rest exclusively upon {caie a) the respective owners 
or keepers {detentores) . 

§ 4. When it is necessary to trim (decotar) the live 
hedge or to repair the dividing wall, the proprietor shall 
have the right to enter upon the land of the neighbor, after 
notice to him. This right, however, does not exclude the 
obligation to indemnify the neighbor for all damage which 
the work may occasion him. 

§ 5. The marginal fences of public ways shall be made 
and preserved by the administration having charge of them 
(a quern incumhirem) , or by the persons, or companies {em- 
presas) who make use {exploram) of them. 



LOSS OF OWNERSHIP. 131 

Section VI. Of the Loss of Immovable Ownership {Pro- 
priedade). 

Art. 589. Besides the causes of extinction considered in 
this Code, immovable ownership (propriedade) is also lost: 

I. By alienation. 

II. By renouncement (renimcia) . 
II. By abandonment. 

IV. By the perishing of the immovable. 

§ 1. In the first two cases of this Article, the effects of 
the loss of ownership (dominio) shall be subordinated to 
the transcription of the transmissive title, or of the renun- 
ciative act, in the register of the place of the immovable. 

§ 2. The immovable abandoned shall be held (arrecadar- 
se-d) as vacant property {bem vago), and shall pass, after 
ten years, to the dominion of the State, or of the Federal 
District, if it is within their respective jurisdiction, or of 
the Union, if it is in territory not yet constituted into a 
State. 

Art. 590. Immovable ownership is also lost by disap- 
propriation for public necessity or utility. 

§ 1. Cases of public necessity are considered to be : 

I. The defense of the national territory. 

II. The public safety. 

III. Public succor, in cases of calamity. 

IV. The public health. 

§ 2. Cases of public utility are considered to be : 

I. The foundation of towns and of establishments of 
public assistance, education or instruction. 

II. The opening, enlargement or prolongation of 
streets, plazas, canals, railroads, and, in general, of any 
public ways (vias). 

III. The construction of works, or establishments, de- 



132 



CIVIL CODE OF BRAZIL. 



stined to the general good of a locality, its adornment (de- 
coragao) and hygiene. 
IV. The exploration of mines. 

Art. 591. In case of imminent danger, as war, or intes- 
tine commotion (Federal Constitution, Art. 80), the com- 
petent authorities may use private property as far as tho 
public good may require, the proprietor being guaranteed 
the right of subsequent indemnization. 

Single Paragraph. In the other eases the proprietor 
shall be previously indemnified, and, if he refuses indem- 
nization, the value shall be judicially consigned to him. 

CHAPTEE III. 
Op the Acquisition and Loss of Movable Ownership. 
Section I. Of Occupation. 

Art. 592. Whoever takes possession {se assenhorear) of 
a thing abandoned, or not yet appropriated, at once ac- 
quires the ownership (propriedade) of it when such occupa- 
tion is not forbidden by law. 

Single Paragraph. Movable things again become with- 
out an owner, when their owner abandons them, with inten- 
tion of renouncing them. 

Art. 593. Things without owner and subject to appro- 
priation, are : 

I. Wild (bravios) animals, while they are possessed of 
{entregues a) their natural liberty. 

II. Tame and domesticated animals which are not 
branded (assignalados) , if they have lost the habit of re- 
turning to the place where they accustomed to gather, ex- 
cept in the case of Art. 596. 

III. Swarms of bees, previously appropriated, if the 



HUNTING AND PISHING. 133 

owner of the hive to which they belonged, does not reclaim 
them immediately. 

IV. Stones, shells and other mineral vegetables or ani- 
mal substances cast up by the sea on the shores, if they do 
not present a sign of previous ownership {doniinio). 



Of Hunting (Caga). 

Art. 594. The administrative regulations in regard to 
hunting (caga) being observed, it can be exercised on public 
lands, or on private lands with the license of the owner. 

Art. 595. The animal caught by the hunter belongs to 
him. If the hunter is in pursuit {no encalgo) of an animal 
and has wounded it, it shall belong to him, although an- 
other catches it. 

Art. 596. Domesticated animals which flee from their 
owners are not reputed animals of the chase, while the 
owners are in pursuit of them. 

Art. 597. If the wounded quarry takes refuge in fenced, 
walled, hedged or cultivated land, the owner of it, if he 
does not wish to permit the entrance of the hunter, must 
deliver it to him or expel it. 

Art. 598. Whoever enters upon the land of another to 
hunt, without the license of the owner, loses the game to 
the latter, and shall respond to him for the damage which 
he may cause. 

Of Fishing. 

Art. 599. The administrative regulations being ob- 
served, it is lawful to fish in public waters, or in private 
waters with the consent of the owner. 

Art. 600. The fish which he catches belongs to the fisher- 



134 



CIVIL CODE OP BRAZIL. 



man, also fish which, having harpooned or speared, he pur- 
sues, although another catches it. 

Art. 601. "Whoever, without permission of the pro- 
prietor, fishes in waters of another, shall lose to him the 
fish which he catches, and shall respond to him for the 
damage which he may cause him. 

Art. 602. In private waters, which pass through the 
lands of many owners, each of the riparian owners has the 
right to fish from his side to the middle thereof. 

Of Finds {InveriQao). 

Art. 603. Whoever finds the lost thing of another, must 
restore it to the owner or legitimate possessor. 

Single Paragraph. Not knowing him, the finder {mven- 
tor) shall try to discover him, and if he does not appear, 
shall deliver the object found to the competent authority 
of the place. 

Art. 604. He who restores the things found, in the terms 
of the preceding Article, shall have the right to a reward 
{recompensa) and to indemnization for the expenses which 
he has made for the preservation and transportation of the 
thing, if the owner does not prefer to abandon it. 

Art. 605. The finder responds for the damages caused 
to the proprietor or legitimate possessor, when he has acted 
with deceit (dolo). 

Art. 606. If, after six months from the notice {aviso) 
to the authority, no one presents himself who shows owner- 
ship (dominio) of the thing, it shall be sold at public auc- 
tion, and after deducting the expenses and the reward of 
the finder (Art. 604), the remainder shall belong to the 
State or to the Federal District, if the lost object was 
found (se depwrou) within their respective jurisdiction, or 



TREASURE — SPECIFICATION. 135 

to the Union, if it were in territory not yet constituted into 
a State. 

Of Treasure. 

Art. 607. If any one should casually find on the land of 
another, an ancient deposit of money or precious things, 
buried or hidden, of the owner of which there is no mem- 
ory, it shall be divided equally between the owner of the 
land and the finder {inventor). 

Art. 608. If the person who found it is the owner of the 
land, any employee of his sent to make the search, or a 
third person not authorized by the owner of the estate, the 
treasure shall belong entirely to the latter. 

Art. 609. If it is found on foral land {terreno aforado), 
it shall be divided equally between the finder and the 
emphyteuta, or shall belong to him entirely if he is the 
finder. 

Art. 610. If anyone shows that the deposit found be- 
longs to him, it shall cease to be considered as treasure. 

Section II. Of Specification {Especificagao). 

Art. 611. Whoever, working on prime material, obtains 
a new species (especie), shall be the owner of it if the ma- 
terial was his, although only in part, and if it cannot be 
restored to its previous form. 

Art. 612. If all the material belongs to another, and it 
cannot be reduced to the preceding form, the new species 
shall belong to the maker (especificador) in good faith. 

§ 1. But, when the reduction is practicable, or when im- 
practicable, if the new species was obtained in bad faith, it 
shall belong to the owner of the prime material. 



136 CIVIL CODE OP BRAZIL. 

§ 2. In any ease, however, if the price of the handiwork 
(mdo de dbra) exceeds considerably the value of the prime 
material, the new species shall belong to the maker. 

Art. 613. The damages which they may suffer shall be 
reimbursed to those prejudiced in the cases {hypotheses) 
of the two preceding Articles, except the last of Art. 612, 
§ 1, concerning the irreducible specification obtained in bad 
faith. 

Art. 614. The specification obtained in any of the man- 
ners of Art. 62 confers {attribue) the ownership upon the 
maker {especificador) , but does not relieve him from in- 
demnization. 

Section III. Of Confusion, Commixture, and Adjunction. 

Art. 615. Things belonging to different owners, con- 
fused, commingled, or conjoined, without their consent, 
continue to belong to them, if it is possible to separate them 
without deterioration. 

§1. If it is not possible, or the separation requires exces- 
sive expense, the whole subsists undivided, each of the own- 
ers being entitled to a share proportional to the value of 
the thing which he contributed {com que entrou) to the 
mixture or aggregate. 

§ 2. If, however, one of the things can be considered as 
principal, the owner of it shall own the whole {sel-o-d do 
todo), indemnifying the others. 

Art. 616. If the confusion, adjunction or mingling was 
practiced in bad faith, the other party may choose between 
keeping the whole, upon paying for the portion which is 
not his, or renouncing the part that belonged to him, upon 
full indemnization. 



TRADITION. 137 

Art. 617. If a new species is formed by the comming- 
ling of materials of different nature, the confusion shall 
have the nature of specification for the effect of attributing 
the ownership (doviinio) to the respective author. 

Section IV. Of Usucaption {Usocapido). 

Art. 61S. He who possesses a movable thing as his own, 
without interruption or opposition during three years, shall 
acquire the ownership (dominio) of it. 

Single Paragraph. The possession which is not based 
upon a just title, as well as that which is tainted, originally 
or subsequently, by bad faith, does not produce usucap- 
tion. 

Art. 619. If the possession of the thing is prolonged for 
ten years, it shall produce usucaption independently of title 
or good faith. 

Single Paragraph. The provisions of Arts. 552 and 553 
are applicable to the usucaption of movable things. 

Section V. Of Tradition {Tradi^ao). 

Art. 620. The ownership {dominio) of things is not 
transferred by contracts before tradition. But this is under- 
stood, when the grantor (transmittente) continues to pos 
sess by "constituto possessorio" (Art. 675). 

Art. 621. If the thing alienated is in the possession of a 
third person, the acquirer (adquirente) shall obtain the in- 
direct possession by the cession which the grantor {alien- 
ante) makes to him of his right to the restitution of the 
thing. 

Single Paragraph. In the cases of this and the preced- 
ing Article, final part, the acquisition of the indirect pos- 
session is equivalent to tradition. 



138 CIVIIi CODE OP BRAZIL. 

Art. 622. Tradition made by one who is not the pro- 
prietor, does not alienate the property. But, if the acquirer 
acts in good faith, and the grantor afterwards acquires the 
ownership {dommio), the transfer is considered revalid- 
ated and the effect of the tradition operative, from the 
moment of his act. 

Single Paragraph. But tradition does not transfer the 
ownership (dominio) when it is based upon (Uver por 
titulo) a void act. 

CHAPTER IV. 

Of Joint Ownership (Condominio). 

Section I. Of the Rights and Dixties of Go-Owners. 

Art. 623. In ownership in common, co-ownership, or 
joint-ownership, each co-owner (condomino) or party {con- 
sorte) may: 

I. Freely use the thing according to its purpose {des- 
tino), and exercise all rights over it compatible with indi- 
vision. 

II. Recover it from a third person. 

III. Alienate or encumber his respective undivided 
part (Art. 1139). 

Art. 624. The co-owner is obliged to contribute in pro- 
portion of his part, to the expenses of the preservation or 
division of the thing, and to bear in the same proportion 
the charge {onus) to which it is subject. 

Single Paragraph. If any of the co-owners do not agree 
to this, the thing shall be divided, the share of each one 
responding for its part of the expenses of the division! 

Art. 625. The debts contracted by one of the co-owners 
for the benefit of the joint interest (communhdo) , and dur- 
ing it, obligate the contracting party (contrahente) ; but 
give him a regressive action against the others.' 



JOINT OWNERSHIP. 139 

Single Paragraph. If any of them do not consent {an- 
nuir), the provisions of the Single Paragraph of the pre- 
ceding Article shall be observed. 

Art. 626. When the debt has been contracted by all the 
co-owners, without indication of the part of each one in the 
collective obligation, and without stipulation of solidarity, 
it is understood that each one is obligated proportionally 
to his share, or lot, in the common thing. 

Art. 627. Bach party (consorte) responds to the others 
for the fruits which he received from the common thing, 
and for the damage which he caused to it. 

Art. 628. Neither one of the co-proprietors can alter thu 
common thing without the consent of the others. 

Art. 629. It is lawful at all times for the co-owner to 
demand the division of the common thing. 

Single Paragraph. The parties may, however, agree 
that the thing may remain undivided, for a term not greater 
than five years, susceptible of subsequent extension. 

Art. 630. If the indivision is a condition established by 
the giver, or testator, it is understood that it was only for 
five years. 

Art. 631. Division between co-owners is simply declara- 
tory and not attributive of ownership (propriedade) . It 
may, therefore, be decreed preliminarily in the same action. 

Art. 632. When the thing is indivisible, or becomes by 
division, inappropriate for its purpose (destino), and the 
parties do not wish to adjudicate it to one only, indemnify- 
ing the others, it shall be sold and the price distributed ; in 
the sale, on equal conditions of offer, the co-owner being 
preferred to the stranger; between co-owners, he who has 
more valuable improvements (bemfeitories) in the thing, 



140 CIVIL CODE OF BRAZIL. 

and if there are none such, the one who has the greater 
share. 

Art. 633. No co-owner can, without the previous con- 
sent of the others, give possession, use or enjoyment of the 
property to strangers. 

Art. 634. The co-owner, as any other possessor, may de- 
fend his possession against another. 

Section II. Of the Admmistration of the Co-Ownership. 

Art. 635. When by reason of circumstances of fact or 
by reason of disaccord, the use and enjoyment in common 
is not possible, the co-owners shall determine whether the 
thing shall be administered, sold or hired. 

§ 1. If all agree that it be not sold, the majority (Art. 
637) has the right to determine upon the administration or 
renting {locagao) of the common thing. 

§ 2. If the majority decides for administration, it will 
also choose the administrator. 

Art. 636. It being resolved to hire the common thing 
(Art. 637), the co-owner shall be preferred, on equal con- 
ditions, to the stranger. 

Art. 637. The majority shall be calculated not by num- 
ber, but by the value of the shares. 

§ 1. The deliberations do not obligate if not taken by 
an absolute majority, that is, by votes which represent 
more than half of the total value. 

§ 2. In case of a tic, the judge shall decide, at the in- 
stance of any co-owner, the others being heard. 

Art. 638. The fruits of the common thing, there being 



JOINT OWNERSHIP. 141 

no stipulation or disposition of last will to the contrary, 
shall be divided in proportion to the shares. 

Art. 639. In cases of doubt, the shares are presumed to 
be equal. 

Art. 640. The co-owner who administers without oppo- 
sition of the others, is presumed to be the common manda- 
tary. 

Art. 641. In omitted cases, the rules of partition of in- 
heritances (Arts. 1772, et seq.), are applied to the division 
of co-ownership (comdominio) . 

Section III. Of Co-Ownership of Walls, Fences, Etc. 

Art. 642. Co-ownership by halves {por meagao) of walls 
{paredes and muros), fences and embankments (vallas) is 
regulated by the provisions of this Code, Arts. 569 to 589, 
and 623 to 634. 

Art. 643. The proprietor who has the right to separate 
(extremar) an immovable with walls (paredes), fences, 
walls (muros), embankments (vallas or vallados), has also 
the right to acquire party-interest (meagao) in the walls, 
embankments or fences of the neighbor, reimbursing him 
for one-half of the actual value of the work and the land 
occupied by it (Art. 727). 

Art. 644. If the two do not agree upon the price of the 
work, it shall be arbitrated by experts at the expense of 
both the adjoining owners (confinantes) . 

Art. 645. Whatever be the price of the party interest 
(meaQao), so long as the party claiming the division does 
not pay or deposit it, he can make no use of the wall (parede 
and muro), embankment, fence, or any other divisory work. 



142 CIVIL CODE OF BRAZIL. 

Section IV. Of Joint Pasturage (Compascuo) . 

Art. 646. If the joint pasturage (compascuo) on private 
estates is established by servitude, it shall be governed by 
the rules {nonnas) governing it. If not, the provisions of 
this Chapter shall be observed so far as applicable, if the 
title from which the communion of pasturage arises does not 
otherwise stipulate. 

Single Paragraph. Joint pasturage in Vacant (ialdios) 
and public lands shall be regulated by the municipal legis- 
lation. 

CHAPTER V. 

Of Defeasible Ownership (Propeiedade Resoluvel). 

Art. 647. When the ownership {dominio) is terminated 
{resolvido) by the fulfillment of the condition or by the 
expiration of the term {advento do termo), the real rights 
granted during its continuance (pendencia) are understood 
as also resolved, and the proprietor in whose favor the reso- 
lution operates may recover the thing from the power of 
whoever detains it. 

Art. 648. If,- however, the ownership (dominio) is re- 
solved by another intervening (superveniente) cause, the 
possessor, who has acquired it by a title anterior to the 
resolution, shall be considered as perfect proprietor, and 
the person in whose benefit the resolution took place (hou- 
ver) has an action against the person whose ownership 
{dominio) was resolved, to recover the thing itself or its 
value. 

CHAPTER VI. 

Of Literary, Scientific, and Artistic Property. 

Art. 649. To the author of a literary, scientific or artis- 
tic work belongs the exclusive right to reproduce it. 



COPYRIGHT. 143 

§ 1. The heirs and successors of the author shall enjoy 
this right for the time of sixty years, counted from the day 
of his decease. 

§ 2. If the author dies without heirs or successors, the 
work becomes public property {cae no domimo publico). 

Art. 650. The editor of a publication composed of 
articles or passages {trechos) from different authors, gath- 
ered into a whole or distributed into a series, such as 
journals, reviews, dictionaries, encyclopedias, and selections 
(selectas), enjoys the rights of author for the economic 
effects secured by this Code. 

Single Paragraph. Every author preserves, in this case, 
his rights to his production, and may reproduce it sepa- 
rately (em separado). 

Art. 651. The editor also exercises the rights to which 
the preceding Article refers, when the work is anonymous 
or pseudonymous. 

Single Paragraph. But, in this case, when the author 
makes himself known, he shall assume the exercise of his 
rights, without prejudice to those acquired by the editor. 

Art. 652. The translator of a work already become public 
property and the writer of versions permitted by the author 
of the original work, or in his default by his heirs or suc- 
cessors, have also the same rights as an author. But the 
translator cannot object (se oppor) to a new translation, 
unless it is a simple reproduction of his own, or unless the 
author gave him such right. 

Art. 653. When a work, made in collaboration, is not 
divisible, and does not come within the provisions of Art. 
651, the collaborators, there being no agreement to the con- 
trary, shall have equal rights between themselves, and 
neither of them can, without the consent of the other and 



144 CIVIL CODE OP BRAZIL. 

under penalty of responding for losses and damages, repro- 
duce it or authorize its reproduction, except when done in 
the collection of his complete works. 

Single Paragraph. Upon the decease of one of the col- 
laborators without heirs or successors, his right accretes to 
the survivors. 

Art. 654. In the case of the preceding Article, if the 
collaborators disagree, the numerical majority shall decide, 
and in default of this, the judge, at the instance of any 
of them. 

§ 1. The dissenting collaborator, however, has the right 
to not contribute to the expenses of reproduction, upon 
renouncing his part in the profits, as well as the right to 
forbid that his name be inscribed in the book. 

§ 2. Each collaborator may, however, individually, with- 
out the consent of the others, defend his own rights against 
third persons, who are not legitimate representatives of the 
former. 

Art. 655. The author of a musical composition, based 
upon a poetical text, may execute it, publish it or transmit 
his rights, independent of the authorization of the writer, 
but indemnifying the latter, who shall preserve the right to 
the reproduction of the text without the music. 

Art. 656. He who, being legally authorized, reproduces 
a work of art by a different artistic process, or by the same 
process with a novelty in the composition, shall be, with 
respect to the copy, considered an author. 

Single Paragraph. He who thus reproduces works 
already become public property, enjoys equally the rights 
of author, without dependence upon authorization. 

Art. 657. A theatrical or musical work being published 
and exposed for sale, the author is understood to consent 



COPTBIGHT. 145 

that it may be represented or executed, wherever its rendi- 
tion {audigao) is not paid for (retribuida) . 

Art. 658. He who, with the authorization of the com- 
poser of a musical work, writes combinations or variations 
upon the original motifs (sobre os Sens motivos), has, with 
respect thereto, the same rights, and with the same guaran- 
ties, as their author has with respect to the former. 

Art. 659. The cession, or the inheritance, of either the 
rights of an author or of a work of art, literature or science, 
does not transmit the right to modify it. But this may be 
exercised by the author, in each successive edition, the 
rights of the editor being respected. 

Single Paragraph. The cession of journalistic articles 
does not produce effect, saving agreement to the contrary, 
beyond the term of twenty days counted from their publi- 
cation. At its expiration, the author recovers his right in 
all its plenitude. 

Art. 660. The Union or the States may disappropriate 
for public utility, upon previous indemnization, any work 
published, the owner of which does not wish to re-edit it. 

Art. 661. To the Union, to the States, or to the Mu- 
nieipios belong: 

I. The manuscripts of their archives, libraries and de- 
partmental offices {repartigdes) . 

II. Works prepared at the direction of (encommenda' 
dos) the respective governments and published at public 
expense. 

Single Paragraph. Works simply subsidized by them 
do not, however, become the property of the Union, of the 
State, or of the Municipio. 

Art. 662. Works published by the Federal, State or 
Municipal Government, other than public acts and official 



146 CIVIL CODE OP BRAZIL. 

documents, become public property fifteen years after 
their publication. 

Art. 663. No one can reproduce a work, not yet become 
public property, on the pretext of annotating it, comment- 
ing upon it or improving it, without permission of the au- 
thor or his representative. 

§ 1. The commentaries or annotations may, however, be 
published separately, forming a work by itself. 

§ 2. Permission confers upon the reproducer the rights 
of the author of the original work. 

Art. 664. The permission of the author, which is also 
necessary in order to reduce the work to a compendium or 
resum6, confers upon the maker of the resume or compen- 
dium the same rights of the former to the original work. 

Art. 665. The permission {licenga) of the author of the 
original work to another, to produce a theatrical piece from 
a romance, to render a prose work into verse, or vice-versa, 
or to develop the episodes, the subject and the general plan 
of it, is equally necessary, and produces the same effects as 
the permission treated of in the preceding Article. 

Single Paragraph. Paraphrases which are not a true re- 
production of the original work, are free. 

Art. 666. The following are not considered violations 
(offensa) of the rights of an author: 

I. The reproduction of passages or short portions {tre- 
chos) of works already published, and the insertion, al- 
though integral, of small compositions of another, in the 
body of a larger work, provided the latter is of (apresente) 
a scientific character, or is a compilation intended for a 
literary, didactic or religious purpose; the source from 
which the excerpts are taken, and the names of the authors, 
must, however, be indicated. 



CJOPYBIGHT. 147 

II. The reproduction in newspapers or periodicals, of 
notices and articles without literary or scientific character, 
published in other newspapers or periodicals, the names of 
the authors and of the periodicals or dailies from which 
they are copied being mentioned. 

III. The reproduction, in newspapers and periodicals, 
of speeches delivered in public meetings, of whatever na- 
ture. 

IV. The reproduction of the public acts and official 
documents of the Union, of the States, of the Municipios, 
and of the Federal District. 

V. The quotation in books, journals or reviews, of pass- 
ages from any work for the purpose of criticism or polemics. 

VI. The copy, made by hand, of any work, provided 
that it is not intended for sale. 

VII. The reproduction, in the body of any writing, of 
works of figurative arts, provided that the writing is the 
principal featurCj and the figures serve only to explain the 
text; the names of the authors or the sources utilized, 
must, however, be indicated. 

VIII. The utilization of a work of figurative art, in 
order to make {para se obter) a new work. 

IX. The reproduction of a work of art existing in the 
streets and plazas. 

X. The reproduction of pictures or busts ordered by 
private persons (de encommenda particular), when made 
by the owner of the objects ordered (encommendados) . 
The person represented and his immediate successors may 
object {oppor-se) to the reproduction or public exhibition 
of the picture or bust. 

Art. 667. The right, which belongs to the author, of at- 
taching (ligar) his name to all his intellectual productions, 
is susceptible of cession. 

§ 1. The wrongful use (usurpagdo) of the name of the 



148 CIVIL CODE OP BRAZIL. 

author or its substitution by another, without agreement to 
justify it, gives the right to indemnization for losses and 
damages. 

§ 2. The person guilty (o autor) of the usurpation or 
substitution, shall moreover be obliged to insert in the work 
the name of the true author. 

Art. 668. The author has no right to enjoy the guar- 
anty of the law, in respect to writings forbidden by law, 
which, by sentence, are ordered to be withdrawn from cir- 
culation. 

Art. 669. Whoever publishes an unedited work, or re- 
produces a work about to be published {em via de publi- 
cagdo) or already published, belonging to another, without 
the permit or consent {outorga ou acquiescencia) of the 
latter, besides losing, in favor of the author or owner, the 
copies fraudulently reproduced which may be found, shall 
pay him the value of the whole edition, minus such copies, 
at the price for which genuine copies are for sale, or at 
which they are valued (avaliados). 

Single Paragraph. If the number of copies fraudulently 
printed and distributed is unknown, the transgressor shall 
pay the value of one thousand copies besides those which 
are found. 

Art. 670. Whoever exposes for sale, or for public read- 
ing for remuneration, a work fraudulently printed, shall 
be jointly {solidariamente) responsible, with the editor, in 
the terms of the preceding Article; and, if the work was 
printed (estampada) in a foreign country, the seller, or 
the person who exhibits it (o expositor), shall respond as 
editor. 

Art. 671. Whoever publishes any manuscript, without 
permission of the author or of his heirs or representatives, 
shall be responsible for the losses and damages. 



REAL EIGHTS. 149 

Single Paragraph. Private letters (cartas-missivas) 
cannot be published without the consent of their authors or 
their representatives, but they may be filed (juntas) as 
documents in judicial proceedings (autos). 

Art. 672. The author, or proprietor, whose work is 
fraudulently reproduced, may, as soon as he knows of it, 
demand the seizure of the copies reproduced, retaining his 
right to indemnization for losses and damages, although no 
copy is found. 

Art. 673. For security of his right, the proprietor of the 
work published (divulgada) by typography, lithography, 
engraving, casting {moldagem) , or any other system of re- 
production, shall deposit, for the purpose of registry (com 
destino ao registro), two copies in the National Library, 
in the National Institute of Music or in the National School 
of Pine Arts of the Federal District, according to the na- 
ture of the production. 

The certificates of registry attest (induzem) the owner 
ship of the work, saving proof to the contrary. 

TITLE III. 
Of Real Rights Upon Things of Another. 

CHAPTER I. 
General Dispositions. 

Art. 674. Real rights, other than' ownership, are : 

I. Emphyteusis. 

II. Servitudes. 

III. Usufruct. 

IV. Use. 

V. Habitation, 

VI. Incomes (rendas) expressly constituted upon im- 
movables. 



150 



CIVIL CODE OF BRAZIL. 



VII. Pledge (penhor). 

VIII. Antichresis. 

IX. Mortgage (hypotheca). 

Art. 675. Real rights upon movable things, when con- 
stituted or transmitted by acts between living persons, are 
only acquired by tradition (Art. 620). 

Art. 676. Real rights upon immovables, constituted or 
transmitted by acts between living persons are only ac- 
quired after the transcription, or inscription, in the reg- 
ister of immovables, of the said titles (Arts. 530, no. I, and 
856), excepting the cases expressed in this Code. 

Art. 677. Real rights pass with the immovable to the 
ownership {para o dominio) of the person who acquires the 
same (adquirente) . 

Single Paragraph. The burden (onus) of taxes {im- 
post os) imposed upon estates {predios) is transmitted to 
those who acquire them {aos adquirentes) , except when 
there appear in the deed {escriptura) the certificates of 
receipt by the tax-office {pelo fisco) of the taxes due, and, 
in case of public sale (em praga) , upon the equivalent of the 
price bid at the auction sale {ate o prego da arrematagao) . 

CHAPTER II. 

Of Bmphttedsis. 

Art. 678. Emphyteusis {aforamento, or emprazamento) , 
occurs {dd-se), when by act between living persons or by 
last wiU, the owner confers upon {attribue a) another the 
beneficial ownership {dominio util) of the immovable, the 
person who acquires it, and who thus is constituted the 
emphyteuta, paying to the direct landlord {senhorio di- 
recto) a pension or rental {foro), which is annual, certain 
and invariable. 



EMPHYTEUSIS. 151 

Art. 679. The contract of emphyteusis is perpetual. An 
emphyteusis for a limited time is considered a lease {arren- 
damento), and is governed by the rules applicable to leases 
{como tal se rege). 

Art. 680. Only uncultivated lands or lands intended for 
building can be the object of emphyteusis. ■ 

Art. 681. Emphyteutic lands are transmitted by in- 
heritance in the same order as is established with respect 
to allodial lands in this Code (Arts. 1603 to 1619) ; but, 
they cannot be divided into tracts (gleias) without the 
consent of the landlord (senhorio). 

Art. 682. The emphyteuta is obliged to satisfy the taxes 
and the real burdens {onvs reaes) which are imposed upon 
the immovable. 

Art. 683. The emphyteuta, or tenant (foreiro), cannot 
sell or give in payment the beneficial ownership, without 
previous notice to the direct landlord, so that the latter may 
exercise the right of option; and the direct landlord has 
thirty days in which to declare, in writing, dated and 
signed, whether he wishes (que quer) the preference in the 
alienation, for the same price and on the same conditions. 

If within the term indicated, he does not respond or does 
not offer the price of the alienation, the tenant {foreiro) 
may effffect it to any one else (com gwem entender). 

Art. 684. The tenant has, likewise, the right of prefer- 
ence, in the event that the landlord wishes to sell the direct 
ownership (dominio direct o) or to give it in payment. For 
this purpose (effeito), the landlord is subject to the same 
obligation imposed, in similar circumstances, upon the ten- 
ant (Art. 683). 

Art. 685. If the emphyteuta does not comply with the 
provisions of Art. 683, the landlord may, notwithstanding, 



152 CIVIL CODE OP BRAZIL. 

use his right of preference, and take (havendo) the land 
from the person acquiring it, for the price of acquisition. 

Art. 686. Whenever the transfer of the beneficial own- 
ership (dominio util) is effected, by sale or giving in pay- 
ment, the direct landlord, who does not exercise his option, 
shall have the right to receive from the alienor the duty 
{laudemio) of two and one-half per cent upon the price of 
the alienation, if no other has been fixed in the instrument 
of lease {titulo de aforamento) . 

Art. 687. The tenant has no right to the remission of the 
rental {foro), on account of the sterility or partial destruc- 
tion of the emphyteutic estate, nor of the total loss of the 
fruits; in such cases he may, however, abandon it to the 
direct landlord, and, independently of his consent, cause 
the act of renouncement to be inscribed (Art. 691). 

Art. 688. It is lawful for the emphyteuta to donate, 
give in dowry, or exchange the leased estate for a non- 
fungible thing, notifying the landlord, within sixty days 
counted from the act of transfer, under penalty of con- 
tinuing responsible for the payment of the rental {foro). 

Art. 689. In case of levy (fazendo-se penhora) upon the 
entailed estate (predio emprazado) , for debts of the em- 
phyteuta, the direct landlord shall be cited to attend at the 
public sale (praga), and he shall have the preference, 
either, in ease of auction-sale, over the other bidders, on 
like conditions, or, in default of them, in case of adjudica- 
tion. 

Art. 690. When the entailed estate comes to belong to 
several persons, they shall, within six months, choose a chief 
tenant {cabecel), under penalty of the right of choice de- 
volving upon the landlord. 

§ 1. After the choice is made, all the actions of the land- 



EMPHYTEUSIS. 153 

lord shall be brought against the chief -tenant, saving to the 
latter his regressive right against the others for their re- 
spective quotas. 

§ 2. If, however, the landlord agrees upon the division 
of the estate {prazo), each of the tracts (glebas) into which 
it is divided shall constitute a distinct estate (prazo). 

Art. 691. If the emphyteuta attempts (preiende) to 
abandon the entailed estate gratuitously to the landlord, 
the creditors prejudiced by the abandonment may object 
(oppor-se), giving bond for the future pensions, until their 
debts are paid. 

Art. 692. The emphyteusis is extinguished : 

I. By the natural deterioration of the entailed estate, 
when it ceases to be worth the capital corresponding to the 
rental (foro) plus one-fifth of the latter. 

II. By forfeiture (commisso) , through the tenant's fail- 
ure to pay the pensions due, for three consecutive years, in 
which event the landlord shall indemnify him for the neces- 
sary improvements. 

III. Upon the decease of the emphyteuta, without heirs, 
saving the rights of his creditors. 

Art. 693. All emphyteuses [aforamentos) , saving agree- 
ment between the parties, are redeemable thirty years after 
they are constituted, through the payment of twenty an- 
nual pensions by the tenant, who cannot in his contract re- 
nounce the right of redemption, nor contravene {contrariar) 
the imperative provisions of this Chapter. 

Art. 694. The sub-emphyteusis is subject to the same 
provisions as the emphyteusis. That of sea-lands {terrenos 
de marinha) and accretions (accrescidos) shall be regulated 
by a special law. 



154 Cmii CODE OP BRAZIL. 

CHAPTER III. 

Op Peedial Servitudes (Servidao Predial). 
Section I. Of the Constitution of Servitudes. 

Art. 695. The predial servitude {servidao predial) is 
imposed upon one estate (predio) in favor of another, be- 
longing to a different owner. By it the owner of the ser- 
vient estate {predio servients) loses some of his rights of 
ownership {direitos dominicaes), or is obliged to tolerate 
the use of it, for a certain purpose, by the owner of the 
dominant estate {predio dominante) . 

Art. 696. Servitude is not presumed. 

Art. 697. Unapparent servitudes {servidoes ndo appa- 
rentes) can only be established by means of transcription in 
the register of immovables. 

Art. 698. The uncontested and continuous possession of 
a servitude for ten or twenty years, in the terms of Art. 
551, authorizes the possessor to transcribe it in his name in 
the register of immovables, the sentence which adjudges the 
consummated usucaption serving him as a title. 

Single Paragraph. If the possessor has no title, the 
period {prazo) for usucaption shall be thirty years. 

Art. 699. The owner of a servitude has the right to 
make all the works necessary for its preservation and use. 
If the servitude pertains to more than one estate, the ex- 
penses shall be prorated among the respective owners. 

Art. 700. The works to which the preceding Article re- 
fers must be made by the owner of the dominant estate, if 
the title does not expressly provide the contrary. 

Art. 701. When the obligation rests {incumhir) upon 



SERVITUDES. 155 

the owner of the servient estate, he may exonerate himself 
by abandoning the property (proprisdade) to the owner 
of the dominant estate. 

Art. 702. The owner of the servient estate cannot em- 
barrass in any way the legitimate use of the servitude. 

Art. 703. The owner of the servient estate may remove 
the servitude from one place (local) to another, provided 
that he does so at his own cost and does not in any way 
diminish the advantages of the dominant estate. 

Art. 704. The use of the servitude shall be restricted to 
the necessities of the dominant estate, avoiding, as far as 
possible, aggravating the charge upon the servient estate. 

Single Paragraph. If the servitude was constituted for 
a certain purpose, it cannot be amplified into another, ex- 
cept as provided in the following Article. 

Art. 705. In servitudes of transit, that of greater in- 
cludes that of lesser onus, and the lesser excludes the more 
onerous. 

Art. 706. If the necessities of the cultivation of the 
dominant estate should require {impuzerem) a greater ex- 
tension (largueza) of the servitude, the owner of the ser- 
vient estate is obliged to suffer it ; but he has the right to be 
indemnified for the excess. 

Single Paragraph. If, however, this increase of burden 
is due to a change in the manner of exercising the servitude, 
as in the case of claiming to build on land until then de- 
stined to cultivation, the owner of the servient estate may 
prevent it (impedil-o). 

Art. 707. Predial servitudes are indivisible. They sub- 
sist, in case of partition, in benefit of each of the shares of 
the dominant estate, and continue to burden each of those 



156 CIVIL Code of brazil. 

of the servient estate, unless, by its nature or purpose, it 
only applies to a certain part of the one or the other. 

Section II. Of the Extinction of Servitudes. 

Art. 708. Servitudes, when once transcribed, are only 
extinguished, with respect to third persons, when they are 
cancelled, except in cases of expropriation. 

Art. 709. The owner of the servient estate has the right, 
by judicial means, to the cancellation of the transcription, 
although the owner of the dominant estate should oppose 
it {Ih'o impiigne) : 

I. "When the party entitled (o titular) has renounced 
his servitude. 

II. When the servitude is for passage, which has ceased 
through the opening of a public road, accessible to the 
dominant estate. 

III. "When the owner of the servient estate redeems 
the servitude. 

Art. 710. Predial servitudes are extinguished : 

I. By the uniting of the two estates under the owner- 
ship of the same person. 

II. By the suppression of the respective works by effect 
of contract, or of other express title. 

III. By non-user, during ten continuous years. 

Art. 711. Upon the extinction of the predial servitude 
transcribed, for any of the causes of the preceding Article, 
the owner of the servient estate has the right to cancel it, 
upon proof of its extinction. 

Art. 712. If the dominant estate is mortgaged, and the 
servitude is mentioned in the mortgage title, the consent of 
the creditor shall also be necessary to cancel the mortgage. 



USUFRUCT. 157 

CHAPTER IV. 

Op Usupeuct. 

Section I. General Dispositions. 

Art. 713. The real right to enjoy (fruir) the profits 
(utilidades) and fruits of a thing, while temporarily sep- 
arated (destacado) from the ownership, constitutes usu- 
fruct. 

Art. 714. Usufruct may be imposed {recair) upon one 
or more properties {bens), movable or immovable, upon an 
entire patrimony, or part of it, and embrace the fruits and 
profits of it, in whole or in part. 

Art. 715. The usufruct of immovables, when it does not 
depend upon a right of family, shall depend upon tran- 
scription in the respective register. 

Art. 716. Unless otherwise provided, the usufruct ex- 
tends to the accessories of the thing and to its increases 
{accrescidos) . 

Art. 717. The usufruct can only be transferred, by 
alienation, to the proprietor of the thing; but its exercise 
may be assigned by gratuitous or onerous title. 

Section II. Of the Rights of the Usufructuary. 

Art. 718. The usufructuary has the right to the posses- 
sion, use, administration and receipt (percepgao) of the 
fruits. 

Art. 719. When the usufruct is imposed (recae) upon 
titles of credit, the usufructuary has the right, not only to 
collect the respective debts, but also to make use of {empre- 
gar-lhes) the amount received for them. This applica- 
tion, however, is upon his own account and risk ; and, when 



168 CIVIL CODE OF BRAZIL. 

the usufruct ceases, the proprietor may refuse to accept 
(recusar) the new titles, and demand the money in specie. 

Art. 720. When the usufruct is imposed upon bonds 
{apolices) of the public debt or similar titles, of variable 
quotation, their alienation can only be effected through 
previous agreement between the usufructuary and the 
owner. 

Art. 721. Saving the right acquired by another, the usu- 
fructuary is entitled to {faz sens) the natural fruits pend- 
ing when the usufruct commences, without the charge of 
paying the expenses of production. 

Single Paragraph. The natural fruits, however, pend- 
ing at the time the usufruct ceases, belong to the owner, 
also without compensation of the expenses. 

Art. 722. The increase (crias) of animals belongs to the 
usufructuary, deducting as many as are required to restore 
the number of head of cattle existing when the usufruct 
began. 

Art. 723. The civil fruits, matured at the initial date of 
the usufruct, belong to the proprietor, and to the usu- 
fructuary those matured at the date on which the usufruct 
ceases. 

Art. 724. The usufructuary may enjoy (usufrwir) the 
estate (predio) in person or through a lessee, but he can- 
not change the kind of cultivation, without the license of 
the proprietor or express authorization in the title ; unless 
by some other title, as that of father, or husband, he has 
(Ihe couber) such right. 

Art. 725. If the usufruct is of forests, or mines, the 
owner and the usufructuary may prescribe the extent of 
the enjoyment and the manner of exploration. 



■USUFRUCT. 159 

Art. 726. Things which are consumed in use belong at 
once to the usufructuary, the latter being, however, obliged 
to restore, when the usufruct terminates, the equivalent in 
kind, quality and quantity, or if this is not possible, their 
value, at the price current at the time of the restitution. 

Single Paragraph. If, however, the said things are ap- 
praised in the title constituting the usufruct, the usu- 
fructuary is obliged, saving a clause to the contrary, to pay 
for them at the price of the appraisement. 

Art. 727. The usufructuary has no right to the part of 
the treasure found by another, nor to the price paid by the 
neighbor of the usufructed estate to obtain party-interest 
{meaQao) in a wall, fence, mound or hedge (Art. 643). 

Art. 728. The provision of the second part of the pre- 
ceding Article does not apply {nao procede), when the 
usufruct is imposed upon (recair sobre) the universality 
or the quota part of property. 

Section III. Of the Obligations of the Usufructuary. 

Art. 729. The usufructuary, before assuming the usu- 
fruct, shall, at his cost, inventory the property which he 
receives, determining the condition (est ado) in which they 
then are (se acham), and shall give bond, fidejussory or 
real, if the owner so requires, to care for its preservation 
and to deliver it at the termination of the usufruct. 

Art. 730. The xisufructuary, who does not wish or cari- 
not give a sufficient bond, shall lose the right to administer 
the usufruct; and, in this case, the property shall be ad- 
ministered by the owner, who shall be obliged, under bond, 
to deliver its returns to the usufructuary, after deducting 
the expenses of the administration, among which shall be 
included the amount taxed by the judge as remuneration 
of the administrator. 



160 CIVIL CODE OF BRAZII;. 

Art. 731. Bond (caugao) is not required of: 

I. The donor, who reserves to himself the usufruct of 
the thing given. 

II. Parents, as usufructuaries of the property of their 
minor children. 

Art. 732. The usufructuary is not obliged to pay for 
the deterioration resulting from the regular exercise of the 
usufruct. 

Art. 733. The usufructuary must bear : 

I. The ordinary expenses of the preservation of the 
property in the condition in which he received it. 

II. The rentals (foros), pensions, and the real taxes 
(impost os) due for the possession, or income, of the usu- 
fructed thing. 

Art. 734. The owner must bear the extraordinary re- 
pairs and those which are not of small (modico) cost; but 
the usufructuary shall pay him the interest on the capital 
expended for such as are necessary to the preservation, or 
which increase the returns, of the usufructed thing. 

Single Paragraph. The expenses are not considered 
small (modicas) which exceed two-thirds of the net income 
of one year. 

Art. 735. If the thing is insured, the usufructuary must 
pay the insurance premiums during the usufruct. 

§ 1. If the usufructuary took out (fizer) the insurance, 
the proprietor is entitled to the right resulting from it 
against the insurer. 

§ 2. In either event (qtialquer hypothese), the right of 
the usufructuary is subrogated in the value of the insur- 
ance money paid. 

Art. 736. If the usufruct is of a single (singidar) thing, 



USUFRUCT. 161 

or a part of it, the usufructuary shall only respond for the 
interest of the debt, which it guarantees, when this hurden 
(onus) is expressed in the respective title. 

If it is of a patrimony, or a part thereof, the usu- 
fructuary shall be obliged for the interest of the debt which 
encumbers (onerar) the patrimony, or the part thereof 
upon which the usufruct was imposed (recaia). 

Art. 737. If a building subject to usufruct is destroyed 
without the fault of the proprietor, he shall not be obliged 
to rebuild it, nor shall the usufruct be re-established, if the 
proprietor should reconstruct the estate (predio) at his own 
cost; but if it was insured, the indemnization paid is sub- 
ject to the onus of the usufruct. 

If the insurance money is applied to the reconstruction 
of the estate, the usufruct shall be re-established. 

Art. 738. The indemnization paid is also subrogated to 
the onus of the usufruct, in place of the estate, if it is ex- 
propriated, or the amount of the damage is reimbursed by 
the third person responsible, in the caoc of damage {dam- 
nificagao) or loss. 

Section IV. Of the Extinction of the Usufruct. 

Art. 739. The usufruct is extinguished : 

I. By the death of the usufructuary. 

II. By the end (tenno) of its duration. 

III. By the cessation of the cause from which it origin- 
ated. 

IV. By the destruction of the thing, if it is not fun- 
gible, the provisions of Arts. 735, 737, 2nd part, and 738 be- 
ing observed. 

V. By consolidation. 

VI. By prescription. 

VII. By the fault (culpa) of the usufructuary, when 



162 CIVIL CODE OP BRAZIL. 

he alienates or deteriorates the property, or lets it go to 
ruin by not making the repairs for its preservation. 

Art. 740. When the usufruct is constituted in favor of 
two or more individuals, it shall be extinguished part by 
part with relation to each of those who may decease, unless, 
by express stipulation, the share of the deceased should go 
{couber) to the survivors. 

Art. 741. The usufruct constituted in favor of a juridi- 
cal person is extinguished with the latter, or if the latter 
should continue (perdurar), in one hundred years from 
the date on which it began to be exercised. 

CHAPTER V. 

Of Use (Uso). 

Art. 742. The holder of a use [itsuario) shall enjoy the 
benefit (utilidade) of the thing, so far as the personal 
necessities of himself and his family require. 

Art. 743. The personal necessities of the holder shall be 
estimated (avaliar) in accordance with his social condition 
and the place where he lives. 

Art. 744. The necessities of the family of the holder of 
the use include : 

I. Those of his spouse. 

II. Those of his unmarried children, although illegiti- 
mate. 

III. Those of the persons of his domestic service. 

Art. 745. The provisions relative to usufruct are ap- 
plicable to use, where not contrary to its nature. 



HABITATION. 163 

CHAPTER VI. 

Op Habitation ( Habit aqao). 

Art. 746. When the use (uso) consists in the right to 
inhabit gratuitously the house of another, the person en- 
titled (titular) to this right cannot rent it out, or lend it, 
but may simply occupy it with his family. 

Art. 747. If the real right of habitation is conferred 
upon more than one person, any one of them, who inhabits 
the house alone (sosinha), shall not have to pay rent to the 
other or others, but he cannot prevent them from exercising, 
if they wish, the right which they also have to inhabit it. 

Art. 748. The provisions concerning usufruct are applic- 
able to habitation, where not contrary to its nature. 

CHAPTER VII. 

Op Income Charged Upon Immovables. 

Art. 749. In case of expropriation for public necessity 
or utility of an estate subject to the constitution of income 
(Arts. 1424 to 1431), the price of the obligated immovable 
shall be applied to constitute another. The money received 
from insurance on it shall, in analogous cases, be applied in 
the same way. 

Art. 750. The payment of the income constituted upon 
an immovable rests by law (incumbe de plena direito) upon 
the acquirer of the encumbered estate. This obligation 
extends to the income (roidas) matured before the aliena- 
tion, saving the regressive right of the acquirer against the 
alienor. 

Art. 751. The immovable subject to the payment {pres- 
tagoes) of income may be redeemed, by the debtor paying 



164 CIVIL CODE OF BRAZIL. 

in specie a capital, the income of which, calculated at the 
legal rate of interest, will assure an equivalent income to 
the creditor. 

Art. 752. In case of failure (fallencia), insolvency or 
execution of the encumbered estate, the creditor of thi? 
income has preference over the other creditors to recover 
(haver) the capital indicated in the preceding Article. 

Art. 754. In case of transmission of the encumbered 
estate to many successors, the real onus of the income 
(renda) continues to encumber it in all its parts. 

CHAPTER VIII. 

Op the Real Rights of Gtuabanty. 

Art. 755. In debts guarantied by pledge (penhor), anti- 
chresis or mortgage, the thing given in guaranty is subject, 
by real lien (vinculo), to the performance of the obligation. 

Art. 756. Only one who can alienate can mortgage, give 
in antichresis, or pledge (empenhar). Only things that 
can be alienated can be given in pledge, antichresis or 
mortgage. 

Single Paragraph. The supervening ownership (do- 
minio) revalidates, from its inscription, the real guaranties 
established by one who possessed the thing in title of 
proprietor. 

Art. 757. The thing common to two or more owners can- 
not be given in real guaranty, in its entirety, without the 
consent of all ; but each one may give in real guaranty the 
part which he has, if the thing is divisible, and only with 
respect to that part will the indivisibility of the guaranty 
be effective (vigorard). 

Art. 758. The payment of one or more installments 
(prestaQoes) of the debt does not imply a corresponding 



REAL EIGHTS OP GUARANTY. 165 

release (exoneragao) of the guaranty, although this em- 
braces several properties, saving express provision in the 
title, or in the receipt (quitagao). 

Art. 759. The creditor by mortgage or pledge has the 
right to have execution upon (executir) the thing mort- 
gaged or pledged, and to preference in payment over other 
creditors, observing, in respect to the mortgage, the priority 
of inscription. 

Single Paragraph. The debt arising from the wages of 
agricultural laborers is excepted from this rule, and they 
shall be paid, in preference to any other debts {credit os), 
from the product of the harvest to which they have con- 
tributed with their labor. 

Art. 760. The antichretic creditor has the right to retain 
the thing in his power as long as the debt is not paid. This 
right is extinguished, however, after thirty years from the 
day of the transcription. 

Art. 761. The contracts of pledge, antichresis and mort- 
gage shall declare, under penalty of not being valid against 
third persons : 

I. The total of the debt, or its estimated amount. 

II. The period fixed for payment. 

III. The rate of interest, if any. 

IV. The thing given in guaranty, with its description. 

Art. 762. The debt is considered matured (vencida) : 

I. If the guaranty depreciates (desfalcar) through the 
deterioration or depreciation of the thing given as security, 
and if the debtor, being notified to do so, does not make it 
good (reforgar). 

II. If the debtor becomes insolvent, or fails. 

III. If the installments (prestagoes) are not punctually 
paid, whenever the payment is stipulated in this manner. 

In this event, the subsequent receipt of the overdue in- 



166 CIVIL CODE OP BEAzm. 

stallment implies the renouneement by the creditor of his 
right of immediate execution. 

IV. If the object given in guaranty perishes. 

V. If the thing given in guaranty is expropriated, iu 
which ease the part of the price which is necessary for the 
integral payment of the creditor shall be deposited. 

§ 1. In the event that the object given as security {em 
garantia) perishes or deteriorates, the indemnity, if insur- 
ance money (seguro) or if there is some one responsible for 
the damage (damno), shall be subrogated for the thing 
destroyed or deteriorated, for the benefit of the creditor, 
who shall have a lien upon it until he is fully reimbursed. 

§ 2. In the cases of nos. IV and V, the mortgage shall 
only mature before the stipulated period, if the accident 
{sinistro) or expropriation affects (recair sdhre) the object 
given in guaranty, and this does not embrace other objects ; 
in th€ contrary case, the reduced debt subsists with the 
respective guaranty, upon the other property, which is not 
expropriated, injured or destroyed. 

Art. 763. The anticipated maturity of the debt, in the 
hypotheses of the preceding Article, does not imply that of 
the interest corresponding to the conventional time yet to 
run {por decorrer). 

Art. 764. Except by express clause, the third person 
who furnishes a real guaranty for the debt of another is 
not obliged to substitute it, or to make it good {reforgal-a) , 
when, without his fault, it is lost, deteriorates, or depre- 
ciates (desvalie). 

Art. 765. The clause is void which authorizes the pig- 
noratic, antichretic or mortgage creditor to retain {fkar 
com) the object of the guaranty, if the debt is not paid at 
maturity. 



PLEDGES. 167 



/ 



Art. 766. The successors of the debtor cannot redeem 
(remir) partially the pledge or the mortgage in the propor- 
tion of their shares; any of them, however, may do it in 
whole. 

Single Paragraph. The heir or successor who so redeems 
(remissao), is subrogated to the rights of the creditor for 
the quotas which he has satisfied. 

Art. 767. If, when the pledge is sold in execution (excii- 
tido), or the mortgage is foreclosed (executada), the prod- 
uct is not sufficient for the payment of the debt and judicial 
expenses, the debtor shall continue personally obligated for 
the balance (restante). 

CHAPTER IX. 

Op Pledge (Penhor). 

Section I. General Dispositions. 

Art. 768. The pledge (penhor) is constituted by effective 
tradition which the debtor, or some one for him, makes to 
the creditor, or one who represents him, of a movable 
object, susceptible of alienation, as security for the debt. 

Art. 769. The pledge can only be constituted by the 
possession of the movable thing by the creditor, except in 
case of agricultural or cattle (pecuarios) pledges, in which 
the object remains in the power of the debtor, by effect of 
the clause "constituti". 

Art. 770. The instrument creating the conventional 
pledge shall determine precisely the value of the debt and 
the object pledged, in terms which distinguish it from all 
others of its Mnd {dos sens congeneres). 

When the object of the pledge is a fungible thing, it is 
sufficient to declare its quality and quantity. 

Art. 771. If the contract is made by means of a private 



168 CIVIL CODE OP BRAZIL. 

instrument, it shall be signed by the parties and in dupli- 
cate, a copy remaining with each of the contracting parties, 
either of whom may take it to be transcribed. 

Art. 772. The pignoratie creditor cannot, when the debt 
is paid, refuse the delivery of the thing to the pledgor. 

He may retain it, however, until he is indemnified for 
the expenses, duly proven, which he has had, if not occa- 
sioned by his fault. 

Art. 773. The creditor may likewise require the debtor 
to satisfy the damage (prejuizo) which he may have suf- 
fered from the defect (vicio) of the thing pledged. 

Art. 774. The pignoratie creditor is obliged, as deposi- 
tary: 

I. To employ in the care {na guarda) of the pledge the 
diligence required by the nature of the thing. 

II. To deliver it with its respective fruits and acces- 
sions when the debt is paid, observing the provisions of the 
preceding Articles. 

III. To deliver what may remain of the price, when the 
debt is paid, either by judicial sale (excussao) or by ami- 
cable sale, if the contract expressly permits it or the debtor 
authorizes it by special power of attorney (procurasao) . 

IV. To reimburse the owner for the loss or deterioration 
for which he may be at fault. 

Art. 775. In the ease of the preceding Article, no. IV, 
the amount of the responsibility of the creditor may be set 
off (compensar-se) against the debt, up to an equal amount. 

Section II. — Of the Legal Pledge. 

Art. 776. Pignoratie creditors, independently of agree- 
ment, are: 
I. Innkeepers (hospedeiros) , Hverymen (estalajadeiros) , 



PLEDGES. 169 

and those who provide lodging or food {fomecedores de 
pousada ou alimento), upon the baggage, movables, jewels 
or money which their guests or customers {consimnidores ou 
freguezes) have with them in the respective houses or estab- 
lishments, for the expenses or consumption which they have 
there made. 

II. The owner of a rustic or urban estate, upon the mov- 
able property which the renter or hirer has furnished upon 
(guarnecendo) the said estate, for the hire or rental. 

Art. 777. The account of the debts enumerated in the 
preceding Article, no. I, shall be made up (extrahida) in 
accordance with the printed tariff (tabella), previously and 
openly posted in the house, of the prices of the entertain- 
ment (hospedagem) , of the board (pensao) or of the goods 
furnished, under penalty of the nullity of the pledge. 

Art. 778. In each of the cases of Art. 776, the creditor 
may take as guaranty one or more objects, up to the value 
of the debt. 

Art. 779. The creditors embraced in the preceding 
Article may make the pledge effective, before having re- 
course to the judicial authority, whenever there may be 
danger in delay. 

Art. 780. Upon taking the pledge, the creditor shall 
immediately (acta continuo) request its approval {homolo- 
gagao), by presenting the itemized account of the expenses 
of the debtor, the tariff of prices, together with a statement 
of the objects retained, and asking citation to him to pay 
within twenty-four hours or plead his defense. 

Section III. Of the Agricultural Pledge. 
Art. 781. The object of the agricultural pledge may be : 
I. Aratory machines and instruments, or those of loco- 
motion. 



170 CIVIL CODE OP BRAZIL. 

II. Crops pending, or under way of formation in the 
year of the contract, whether the result of previous culti- 
vation or of the spontaneous production of the soil. 

III. Fruits stored up in natural condition (em ser), or 
worked up and prepared {ieneficiados e acondicionados) 
for sale. 

TV. Cut firewood, or logs {madeira das mattas) pre- 
pared for cutting. 

V. Animals used in the ordinary service of the agricul- 
tural establishment. 

Art. 782. The agricultural pledge can only be contracted 
for the period of one year, which may be subsequently 
extended for six months. 

Art. 783. If the estate (predio) is mortgaged, the agri- 
Bultural pledge cannot be constituted upon it, under penalty 
of nullity, without the consent of the mortgage creditor, 
given by him in the very instrument constituting the pledge. 

Art. 784. In the pledge of animals, the instrument, 
under penalty of nullity, shall designate them with the 
greatest precision, specifjdng particularly the place where 
they are, and their purpose (o destino que tiverem). 

Art. 785. The debtor cannot sell the cattle (gado) 
pledged, without the previous written consent of the 
creditor. 

Art. 786. When the debtor pretends to sell the cattle 
pledged, or, through negligence, threatens to prejudice the 
creditor, the latter may require that the animals be depos- 
ited under the care of a third person, or demand that the 
debt be paid immediately (in-conUnenti) . 

Art. 787. Animals of the same kind, bought to substi- 
tute dead ones, are subrogated in the pledge. 
Single Paragraph. This substitution is presumed, but it 



SURETY BONDS. 171 

will not avail against third persons, if it does not appear 
{constar) by additional mention in (ao) the respective 
contract. 

Art. 788. The pledge of animals does not admit a period 
greater than two years, but it may be extended (prorogado) 
for an equal period, the extension being noted {averiando- 
se) in the respective title. 

Single Paragraph. When the extension has expired, the 
pledge may be in execution sold (excutido), if it is not 
reconstituted. 

Section IV. Of Surety Bonds of Securities (Caugao do 
Titulos de Credito). 

Art. 789. The surety bond (cauQdo) constituted by reg- 
istered or "to order" certificates (titulos nominativos) of 
the Public Debt of the Union, of the States or of the 
Municipios, is likened (equipara-se) to a pledge (penhor) 
and is good as against third persons from the time it is 
transcribed, although such certificates (titulos) have not 
been delivered to the creditor. 

Art. 790. The bond constituted by titles of personal 
credit is also likened to the pledge, but with the modifica- 
tions of the following Articles. 

Art. 791. This bond becomes effective upon the tradition 
of the title to the creditor, and shall be proven by writing, 
in the terms of Articles 770 and 771. 

Art. 792. The creditor by this bond has the right : 

I. To preserve and recover the possession of the titles 
pledged (caucionados) , by all civil or criminal proceedings 
(meios) against any one who detains them (o detentor), in- 
cluding the owner. 

II. To notify (fazer intimar) the debtor of the title* 



172 CIVIL CODE OF BRAZIL. 

pledged (caucionados) not to pay his creditor, so long as 
the bond (caugao) continues in force (durar). 

III. To exercise (tisar) the proper actions, recourses 
and exceptions in order to assure his rights, as well as 
those of the bonding creditor {credor caitcionante) , as if 
he were the special procurator of the latter. 

IV. To receive the amount of the pledged titles, and to 
restore them to the debtor, when the latter settles (solver) 
the obligation guaranteed by them. 

Art. 793. In the case of the preceding Article, no. IV, 
the secured {caucionado) creditor shall be responsible, as 
depositary, to the bonding {caucionario) creditor, for what 
he receives beyond what was due him. 

Art. 794. The debtor of the pledged title (titulo cau- 
cionado), as soon as he receives the notice of Art. 792, no. 
II, or has knowledge of the bond, cannot receive an acquit- 
tance from his creditor. 

Art. 795. He who, being a creditor in a title of credit, 
acquits (guitar) the debtor after the title is pledged (cau- 
cionado), shall be obliged, by that fact, to settle imme- 
diately the debt in guaranty of which the bond was given ; 
and the debtor, who, knowing that his title of debt is 
pledged (caucionado) , accepts an acquittance from the 
bonding creditor (credor caucionante), siyall respond sol- 
idarily, with the latter, for the losses and damages to the 
pledgee (caucionado). 

Section V. Of the Transcription of the Pledge. 

Art. 796. The agricultural pledge shall be transcribed 
In the register of immovables. 

Single Paragraph. So long as it is not cancelled, the 
transcription continues to be effective (valer) against third 
persons. 



SURETY BONDS. 173 

Art. 797. The pledge of titles listed on the stock ex- 
change (tittdos da bolsa) shall be recorded {averbar-se-d) 
in the proper districts (repartigdes competentes) , or in the 
place of business (sede) of the company issuing them (as- 
sociagdo emissora). 

Art. 798. The creditor who accepts in pledge {caugao) 
titles not yet fully paid (integrados), may, upon any sub- 
sequent calls being made, at once have execution against 
the debtor, if he does not pay the call, or may pay it under 
protest. 

Art. 799. If, in the terms of the preceding Article, the 
call is paid under protest, the amount of it shall be 
added to the debt, and the creditor has the right to imme- 
diate execution against the debtor. 

Art. 800. The creditor, or the debtor, either one in the 
absence of the other contracting 'party, may have the 
pledge transcribed, upon presenting the respective instru- 
ment in the form of Art. 135, if it is private. 

Art. 801. The debtor may have the pignoratic instru- 
ment cancelled, upon presenting the acquittance of the 
creditor, with the signature acknowledged, if the document 
is private (Art. 1093) . 

Single Paragraph. The same right pertains to the ac- 
quirer of the pledge by adjudication, purchase, succession 
or remission, upon exhibiting his title. 

Section VI. Of the Extinction of the Pledge. 

Art. 802. The pledge is ended (resolve-se) ■ 

I. By the obligation being extinguished. 

II. By the thing perishing. 

III. By the creditor renouncing. 

IV. By judicial adjudication, redemption, or the 



174 CIVIL CODE OF BRAZIL. 

amicable sale of the pledge, if expressly permitted by the 
contract or if it be authorized by the debtor (Art. 774, no. 
Ill), or by the creditor (Art. 785). 

V. By the characters of creditor and owner of the thing 
becoming merged {confundindo-se) in the same person. 

VI. By judicial adjudication, redemption, or the sale 
of the pledge authorized by the debtor. 

Art. 803. The renouncement of the creditor is presumed, 
when he consents to the private sale of the pledge without 
reservation of price, when he restores its possession to the 
debtor, or when he consents to its substitution by another 
guaranty. 

Art. 804. Where the merger {confusao) affects only a 
part of the pignoratic debt, the pledge shall subsist entire 
as to the rest. 

CHAPTEE X. 

Of Antichresis. 

Art. 805. The debtor, or another for him, may deliver 
to the creditor an immovable, and grant him the right to 
receive the fruits and income in compensation for the debt. 

§ 1. It is permitted to stipulate that the fruits and in- 
come of the immovable, in their totality, may be received 
by the creditor on account only of the interest. 

§ 2. The immovable mortgaged may be given in anti- 
chresis by the debtor to the mortgage creditor; also the im- 
movable subject to antichresis may be mortgaged by the 
debtor to the antichretic creditor. 

Art. 806. The antichretic creditor may enjoy {fruir) 
the immovable directly, or, saving pact to the contrary, rent 
it to a third person, retaining, in the latter case, the right 
to the retention of the immovable until paid. 



ANTICHRESIS. 175 

Art. 807. The antichretic creditor responds for the 
deteriorations which the immovable may suffer through 
his fault, and for the fruits which, through his negligence, 
he may fail to receive. 

Art. 808. The antichretic creditor may vindicate his 
rights against the acquirer of the immovable, the chiro- 
graphic creditors and the hypothecary creditors posterior 
to the transcription of the antichresis. 

§ 1. If, however, he should have execution (executar) 
of the immovable for non-pajonent of the debt, or permit an- 
other creditor to execute it, without opposing his right of 
retention against the person executing it (exequente) , he 
shall not have a preference upon the price. 

§ 2. Neither shaU he have it upon the insurance in- 
demnity, when the estate is destroyed, nor upon that of the 
expropriation, if it is expropriated. 

CHAPTER XI. 

Op Mortgage (Hypotheca). 

Section I. General Dispositions. 

Art. 809. The law of the mortgage (hypotheca) is the 
civil law, and the jurisdiction civil, although the debt may 
be commercial, and the parties merchants. 

Art. 810. The object of the mortgage may be : 

I. Immovables. 

II. The accessories of the immovables jointly with them. 

III. The direct ownership (dominio directo). 

IV. The beneficial ownership (dominio utU). 

V. Eailroads. 

VI. Mines and quarries, independently of the soil in 
which they are found. 

VII. Ships (Art. 825). 



176 



ClVIIi CODE OP BRAZIL. 



Art. 811. The mortgage embraces all the accessions, im- 
provements and constructions of the immovable. 

Real encumbrances {onus) constituted and transcribed 
previously to the mortgage, subsist upon the same immov- 
able. 

Art. 812. The owner of the mortgaged immovable, may, 
by a new title, constitute another mortgage upon it, in 
favor of the same creditor or of another. 

Art. 813. Except in case of the insolvency of the debtor, 
the creditor of the second mortgage, cannot, although it is 
matured, have execution against the immovable before the 
maturity of the first. 

Single Paragraph. The debtor is not considered insol- 
vent by reason of failure to pay obligations guaranteed by 
mortgages subsequent to the first. 

Art. 814. The prior mortgage may be redeemed {re- 
mida), when it matures, by the creditor of the second, if 
the debtor does not offer to redeem it (remil-a). 

§ 1. In order to redeem it, in this case, the second cred- 
itor shall consign the amount of the debt and of the judi- 
cial expenses, in the event that execution is pending, noti- 
fying the prior creditor to take it up {levant al-a) and the 
debtor to redeem it {remil-a) , if he wishes. 

§ 2. The second creditor, who redeems the prior mort- 
gage, becomes ipso facto subrogated to the rights of the 
latter, without prejudice to the rights which he has against 
the common debtor. 

-Art. 815. The acquirer of the mortgaged immovable has 
likewise the right to redeem it. 

§ 1. If the acquirer wishes to avail himself {forrar-se) 
of the effects of the execution of the mortgage, he shall, 



MORTGAGES. 177 

within thirty days, judicially notify the hypothecary cred- 
itors of his contract, proposing as the minimum, for its re- 
demption, the price for which he acquired the immovable. 
The notification shall he executed in the inscribed domi- 
cile (Art. 846, Single Paragraph), or by edicts, if the cred- 
itor is not there. 

§ 2. The creditor when notified, may, within the period 
assigned for opposition, require that the immovable be sold 
at public auction (licitado). 

Art. 816. Permitted to bid (licitar), are: 

I. The hypothecary creditors. 

II. The sureties (fiadores). 

III. The acquirer himself. 

§ 1. If the sale at auction is not required, the price of 
the acquisition or that which the acquirer proposed, shall 
be taken as definitely fixed for the redemption of the im- 
movable, which, when the said price is paid or deposited, 
shall remain free of the mortgage. 

§ 2. If the acquirer does not notify the mortgage cred- 
itors, within the thirty days of Art. 815, § 1, he is liable 
(obligado) for: 

I. The losses and damages suffered by (para com) the 
mortgage creditors. 

II. The judicial costs and expenses. 

III. The difference between the appraisement and the 
adjudication, in the event that the latter is effected. 

§ 3. The immovable shall be levied upon (penhorado) 
and sold for the account of the acquirer, although he may 
wish to pay or deposit the price of the sale, or of the ap- 
praisement, unless the creditor consents, or if the price of 
the sale or of the appraisement is sufficient to satisfy the 
mortgage, or unless the acquirer redeems it. 



178 



CIVIL CODE OF BHAZIIi. 



The appraisement shall never be for a price less than 
that of the sale. 

§ 4. The acquirer, vrho suffers expropriation of the im- 
movable by auction-sale, or levy; or who pays the mort- 
gage; or who disburses in payment of the mortgage, on 
account of the adjudication or auction, an amount exceed- 
ing that of the purchase ; or who bears the judicial costs 
and expenses, shall have a regressive action against the 
vendor. 

§ 5. The legal mortgage is redeemable (remivel) in the 
same form as are special mortgages, the persons competent 
in accordance with the legislation in force figuring as the 
parties to whom it belongs {figurando pelas pessoas, a que 
pertencer) . 

Art. 817. By means of a simple notation (averbagao), 
requested by both parties, the mortgage may be extended 
(prorogar-se) until the completion of (perfazer) thirty 
years from the date of the contract. After the completion 
of thirty years, the contract of mortgage can only subsist 
by being reconstituted by a new title and new inscription ; 
and, in this case, the precedence which it then had shall be 
maintained. 

Art. 818. It is lawful for the interested parties to set 
forth (fazer constar) in the instruments {escripturas) 
the value agreed between themselves of the immovables 
mortgaged, which value shall be the basis for auction-sales, 
adjudications and redemptions, and dispense with the ap- 
praisement. 

Redemptions shall not be permitted before the first pub- 
lic sale (praQa) is held (realizada), nor after the signature 
of the order {auto) of public sale {arrematoQao) . 

Art. 819. The creditor in a legal mortgage, or his rep- 



MOKTQAGES. 179 

resentative, upon showing the insufficiency of the immov- 
ables specified, may require that it be reinforced with 
others, subsequently acquired by the person responsible. 

Art. 820. The legal mortgage may be substituted by a 
bond {caugdo) of titles of the public Federal or State debt, 
received at the value of their minimum quotation for the 
current year. 

Art. 821. In the case of the bankruptcy {fallencia) of 
the hypothecary debtor, the right of redemption devolves 
upon the estate (massa), to the prejudice of which the 
creditor cannot prevent the payment of the price for which 
the immovable was appraised. The balance (restante) of 
the mortgage debt shall enter into concourse with the 
chirographic debts. 

In case of insolvency, that right belongs to the creditors' 
meeting (aos credores emconcurso) . 

Art. 822. In case of the insolvency or bankruptcy of the 
debtor, the mortgage creditor may require the adjudication 
of the immovable in payment of his debt, although the 
property is appraised in an amount less than the debt, pro- 
vided that he gives a receipt for its full amount (pela sua 
totalidade). 

Art. 823. Mortgages executed, in guaranty of prior 
debts, within forty days preceding the declaration of bank- 
ruptcy (quebra) or the opening of the concourse of prefer- 
ence, are void, in benefit of the estate (massa). 

Art. 824. The execution creditor (exequente) has the 
right to proceed with the execution of the sentence against 
the acquirers of the property of the execution debtor (com- 
demnado) ; but, as against third persons (para ser opposto 
a terceiros), and without importing preference, it depends 
upon inscription and detailed description (especialsa(ao) : 



180 CIVIL CODE OF BRAZIL. 

Art. 825. Ships {navios) are susceptible of the contract 
of mortgage, although yet in construction. 

Mortgages of ship shall be governed by the provisions of 
this Code and by special regulations which may be issued 
upon the subject. 

Art. 826. The execution of the mortgaged immovable 
shall be by executive action. The judicial sale of immov- 
ables encumbered by mortgages, duly inscribed, shall not 
be valid, unless the several mortgage creditors who are not 
in any way parties to the execution, have been judicially 
notified. 

Section II. Of the Legal Mortgage. 

Art. 827. The law grants a mortgage : 

I. To the married woman, upon the immovables of the 
husband, to guaranty the dowry and her other private 
property subject to the marital administration. 

II. To the descendants, upon the immovables of the as- 
cendant who administers their property. 

III. To the children, upon the immovables of the 
father, or of the mother, who contracts another marriage 
before making an inventory of the previous conjugal es- 
tate (Art. 183, no. XIII). 

IV. To persons who have not the administration of 
their property, upon the immovables of their guardians or 
curators. 

V. To the Public Treasury (Fazenda), Federal, State 
or Municipal, upon the immovables of the treasurers, col- 
lectors, administrators, exactors, directors (prepostos) , rev- 
enue officers (rendeiros) and contractors of the revenue 
and sureties. 

VI. To the injured person {offendido) or to his heirs, 
upon the immovables of the wrongdoer (dslinqutnte) , for 



MORTGAGES. 181 

the satisfaction of the damage caused by the wrongful act 
(delicto) and the payment of the costs (Art. 842, no. I). 

VII. To the Public Treasury (Fazenda), Federal, State 
or Municipal, upon the immovables of the delinquent, for 
the performance of pecuniary penalties and the payment of 
the costs (Art. 842, no. II). 

VIII. To the co-heir for guaranty of his share or part 
(torna) of the partition, upon the immovable adjudicated 
to the heir who acquires the property subject to satisfying 
the shares of the co-heirs (herdeiro reponente) . 

Art. 828. Legal mortgages, of whatever nature, shall 
not in any case be valid against third persons, if not in- 
scribed and exactly described {especializadas) . .. 

Art. 829. "When the property of the wrongdoer {cri- 
minoso) is not sufiicient for the full settlement of the obli- 
gations of Art. 827, nos. VI and VII, the satisfaction of the 
injured person (offendido) and his heirs shall be preferred 

to the pecuniary penalties and judicial costs. 

» 

Art. 830. The inscription of the mortgage is good (vale) 
so long as the obligation endures; but the description of 
property (especializagao) must be renewed at the end of 
thirty years. 

Section III. Of the Inscription of the Mortgage. 

Art. 831. All mortgages shall be inscribed in the reg- 
ister of the place of the immovable, or if the instrument 
(titulo) refers to more than one, in that of each of them. 

Art. 832. For the inscription of mortgages, there shall 
be the necessary books in each office (cartorio) of the reg- 
ister of immovables. 

Art. 833. The inscriptions and notations (averbagoes) 
in the books of mortgages, shall follow the order in which 



182 CIVIL CODE OF BRAZIL. 

they are requested, this being indicated (verficando-se) by 
their successive numeration in the protocol. 

Single Paragraph. The number of order determines the 
priority, and this the preference between the mortgages. 

Art. 834. When the official has a doubt about the le- 
gality of the inscription requested, he shall declare it in 
writing to the person requesting it (requerente) , after 
mentioning, in the form of an annotation, the request in 
the appropriate book. 

Art. 835. If the doubt, within thirty days, is adjudged 
unfounded {improcedente) , the inscription shall be made 
with the same number that it would have at the date of the 
annotation. In the contrary case, this being disregarded 
(desprezada) , the inscription shall receive the number cor- 
responding to the date on which it is again requested. 

Art. 836. Two mortgages, or one mortgage and another 
real right, upon the same immovable, in favor of different 
persons, shall not be inscribed on the same day, except upon 
determining precisely the hour in which each of the in- 
struments (escripturas) was made (se lavrou). 

Art. 837. "When, before the first is inscribed, a second 
mortgage is presented to the official of the register to be 
inscribed, he shall suspend (soirestara) the inscription of 
the latter, after making an annotation of it, for thirty 
days, waiting for the interested party to inscribe first the 
preceding one. 

Art. 838. The interested parties have the right, upon 
exhibiting the copy (traslado) of the instrument {escrip- 
tura), to require the inscription of the mortgage; it being 
especially incumbent upon the persons determined in the 
following Articles, to secure (promover) the inscription of 
the legal mortgage. 



INSCEIPTION OP MORTGAGES. 183 

Art. 839. It is incumbent upon the husband, or the 
father, to require the inscription and specialization of the 
legal mortgage of the married woman. 

§ 1. The public official who makes (lavrar) the instru- 
ment (escriptura) of dowry, or prepares (langar em nota) 
the statement (relagdo) of the private property of the wife, 
shaU communicate it ex-officio to the official of the register 
of immovables. 

§ 2. In the event that the husband or father does not 
require the inscription of this mortgage, the donor, the 
wife herself, and any of her relatives in order of succession 
{parentes successiveis) , are considered interested parties 
to require it. 

Art. 840. The duty to require the inscription and spe- 
cialization of the legal mortgage of incapables, is incum- 
bent upon: 

I. The father, mother, guardian, or curator, before as- 
suming the administration of the respective property, and 
in default of these, the Ministerio Publico. 

II. The maker of the inventory (inventariante) , or the 
executor (testamenteiro) , before delivering the legacy or 
the inheritance. 

Art. 841. The official (escrivdo) of the inventory, upon 
the signing of an undertaking {termo) of guardianship or 
curatorship, shaU, ex-officio and as promptly as possible, 
remit a copy of it to the official of the register of immov- 
ables. 

Single Paragraph. In the inscription of this mortgage, 
any successory relative of the incapable is considered an 
interested party. 

Art. 842. The inscription of the legal mortgage of the 



184 CIVIL CODE OP BRAZIL. 

injured person (offendido), must be made by himself, or 
this duty is incumbent : 

I. If he is incapable, upon his guardian, or curator, for 
the purposes stated in Art. 827, no. VI. 

II. Upon the Ministerio Publico to comply with the 
provisions of Art. 827, no. VII. 

Art. 843. Those interested in the inscription of the 
above mortgages may personally require it or request the 
official action of the Ministerio Publico. 

Art. 844. The inscription of the mortgage of the prop- 
erty of those responsible to the Public Treasury shall be 
required by themselves, and in their default, by the fiscal 
procurators and representatives. 

Art. 845. The persons having the duty of securing the 
inscription and specialization of legal mortgages, are liable 
for losses and damages by their omission. 

Art. 846. The inscription of the mortgage, legal or con- 
ventional, shall declare : 

I. The name, domicile and profession of the creditor 
and of the debtor. 

II. The date, the nature of the title, the value of the 
credit and that of the thing, or its estimated value, fixed 
by agreement between the parties, the term (prazo) and 
the interest stipulated. 

III. The situation, the denomination and the character- 
istics of the thing mortgaged. 

Single Paragraph. The creditor, besides his real domi- 
cile, may designate another where he may also be cited. 

Art. 847. Chirographary creditors and those by mort- 
gage not inscribed in first place and without competition 
{concorrencia) , can only invalidate the effects of the first 



MORTGAGES OP RAILEOADS. 185 

mortgage, entitled to priority by respective registry, by 
means of the ordinary action of nullity or rescission. 

Art. 848. Mortgages are only good {valem) against 
third persons from the date of the inscription. 

So long as not inscribed, mortgages only subsist between 
the contracting parties. 

Section IV. Of the Extinction of the Mortgage. 

Art. 849. The mortgage is extinguished : 

I. By the disappearance of the principal obligation. 

II. By the destruction of the thing or the termination 
{resolugao) of the ownership (dominio). 

III. By the renouncement of the creditor. 

IV. By redemption (remissao). 

V. By final sentence {passada em julgada). 

VI. By prescription. 

VII. By judicial sale or adjudication. 

Art. 850. The extinction of the mortgage only becomes 
effective against third persons after it is noted (averiada) 
in the appropriate register. 

Art. 851. The inscription shall be cancelled, in each of 
the cases of the extinction of the mortgage, upon presenta- 
tion of the proper proof, or, independently of this, at the 
request of both the parties, if they are capable and known 
to the official of the register. 

Section V. Of the Moi-tgage of Railroads (Vias Perreas). 

Art. 852. Mortgages of railroads {estradas de ferro) 
shall be registered in the municipio of the initial station of 
the line affected. 

Art. 853. The hypothecary creditors cannot embarrass 
the operation (exploragao) of the line, nor interfere with 



186 CIVIL CODE OP BRAZIL. 

(c&ntrariar) the changes which the administration may 
make in the roadbed, in its dependencies, or in its material. 

Art. 854. The mortgage shall be limited to the line or 
lines specified in the instrument (escriptura) and to the 
operating material affected, in the condition in which they 
were at the time of its execution. Nevertheless, the mort- 
gage creditors may object to the sale of the road, of its 
lines, of its branches, or of a considerable part of its oper- 
ating material, as well as to its fusion with another com- 
pany {empresa), provided that the guaranty of the debt 
seems to them to be weakened ( emfraquecida) . 

Art. 855. In the foreclosures (execugoes) of these mort- 
gages, a deed shall not be made {ndo se passard carta) to 
the highest bidder, or to the adjudicatory creditor, before 
notifying the representative of the National, or State 
Treasury, who is entitled to the preference (a gtte tocar a 
preferencia) , so that, within fifteen days, he may exercise 
it, if he wishes, by paying the price of the public sale, or of 
the fixed adjudication. 

Section VI. Of the Register of Immovables. 

Art. 856. The register of immovables comprehends : 

I. The transcription of the titles of transmission of the 
ownership (propriedade) . 

II. The transcription of the titles enumerated in Art. 
532. 

III. The transcription of the titles by which are con- 
stituted (constitutivos) real burdens {onus reaes) upon 
things of another. 

IV. The inscription of mortgages. 

Art. 857. If the title of transmission is gratuitous, the 
transcription may be required (promovida) : 



REGISTER OF IMMOVABLES. 187 

I. By the acquirer himself. 

II. By whoever represents him in law. 

III. By the grantor himself, with proof of the accept- 
ance of the beneficiary (ieneficiado) . 

Art. 858. The transcription of the title of transmission 
of the direct ownership {dominio directo) benefits {apro- 
veita) the person entitled (titular) to the beneficial owner- 
ship {dominio util), and vice-versa. 

Art. 859. The real right is presumed to belong to the 
person in whose name it was inscribed, or transcribed. 

Art. 860. If the entry (teor) of the register of immov- 
ables does not express the truth, the prejudiced party may 
demand (reclamar) that it be rectified. 

Single Paragraph. So long as the title of transmission 
is not transcribed, the alienor continues to be held as the 
owner of the immovable, and responds for its charges {en- 
car gas) . 

Art. 861. The inscriptions, or transcriptions, shall be 
made in the register corresponding to the place where the 
immovable is. 

Art. 862. Unless otherwise agreed, the grantee bears the 
expenses of the transcription of titles of transmission of 
ownership, and the debtor those of the inscription, or 
transcription, of real onus. 



188 CrVIL CODE OF BRAZIC. 

BOOK III. 

OF THE LAW OF OBLIGATIONS 



TITLE I. 
Of the Conditions of Obligations. 

CHAPTER I. 

Op Obligations. 

Section I. Of Obligations to Give a Certain Thing. 

Art. 863. The creditor of a certain thing cannot be 
obliged to receive another, although it may be more val- 
uable. 

Art. 864. The obligation to give a certain thing em- 
braces its accessories, although not mentioned, unless the 
contrary results from the title, or from the circumstances 
of the case. 

Art. 865. If, in the case of the preceding Article, the 
thing is lost, without the fault of the debtor, before tradi- 
tion, or pending a suspensive condition, the obligation is 
ended (resolvida) for both parties. 

If the loss results from the fault of the debtor, he shall 
respond for its equivalent, besides the losses and damages. 

Art. 866. If the thing becomes deteriorated, without the 
fault of the debtor, the creditor may resolve the obligation, 
or accept the thing with abatement of the price or value 
which it lost. 

Art. 867. If the debtor is at fault, the creditor may re- 
quire its equivalent, or accept the thing in the condition in 
which it is, with the right in either case, to demand indenmi- 
zation of the losses and damages. 



CONTRACTS TO GIVE. 189 

Art. 868. Until the tradition, the thing belongs to the 
debtor, with its improvements and increases, for which he 
may require an increase of the price. If the creditor does 
not consent, the debtor may resolve the obligation. 

Single Paragraph. The fruits collected {percebidas) 
also belong to the debtor ; those pending to the creditor. 

Art. 869. If the obligation is to restore a certain thing, 
and, without fault of the debtor, it is lost before tradition, 
the creditor shall suffer the loss, and the obligation shall 
be resolved, saving to him, however, his rights up to the 
day of the loss. 

Art. 870. If the thing is lost through the fault of the 
debtor, the provisions of Art. 865, Second Part, shall be 
enforced. 

Art. 871. If the thing to be restored deteriorates with- 
out fault of the debtor, the creditor shall receive it, such as 
it is, without right to indemnization ; if through the fault 
of the debtor, the provisions of Art. 867 shall be observed. 

Art. 872. If, in the case of Art. 869, the thing has im- 
proved or increased, without expense or labor of the debtor, 
the creditor shall have the benefit {lucrard) of the improve- 
ment or increase without paying indemnization. 

Art. 873. If the debtor employed labor or expense for 
the improvement or increase, the provisions of Arts. 516 to 
519 shall apply. 

Single Paragraph. With respect to the fruits collected, 
the provisions of Arts. 510 to 513 shall be observed. 

Section II. Of Obligations to Give An Uncertain Thing. 

Art. 874. An uncertain thing shall be indicated, at 
least, by its kind (genero) and quantity. 

Art. 875. In things • determined by kind and quantity, 



190 CIVIL CODE OP BRAZIL. 

the choice belongs to the debtor, if the contrary does not re- 
sult from the title of the obligation. But he cannot give 
the worst thing, nor shall he be obliged to give (prestar) 
the best. 

Art. 876. When the choice is made, the provisions of 
the preceding Section shall apply. 

Art. 877. Before the choice, the debtor cannot plead 
(allegar) the loss or deterioration of the thing, although by 
vis major [forga maior) or fortuitous event {caso fortuito). 

CHAPTER II. 

Op Obligations to Do. 

Art. 878. In the obligation to do (fazer) , the creditor 
is not obliged to accept the prestation of a third person, 
when it was agreed that the debtor should do it personally. 

Art. 879. If the prestation of the act (facto) becomes 
impossible without the fault of the debtor, the obligation 
shall be resolved ; if by fault of the debtor, he shall respond 
for the losses and damages. 

Art. 880. The debtor is also under obligation to in- 
demnify losses and damages, who refuses the prestation im- 
posed upon him alone, or which may be demanded {exi- 
quivel) only by him. 

Art. 881. If the act (facto) can be executed by a third 
person, the creditor shall be free to order it to be executed 
at the cost of the debtor, if the latter refuses or delays, or 
to demand indemnization for losses and damages. 



CONTRACTS NOT TO DO. 191 

CHAPTER III. 
Of Obligations Not to Do. 

Art. 882. The obligation not to do (de nao fazer) is ex- 
tinguished, when, without fault of the debtor, it becomes 
impossible for him to abstain from the act which he was 
obligated not to do (practicar) . 

Art. 883. If the debtor performs the act (ado) from 
which he obligated himself to abstain, the creditor may re- 
quire him to undo {desfaga) it, under penalty of its being 
undone at his cost, and the party at fault (o culpado) 
shall be liable for the losses and damages. 

CHAPTER IV. 

Op Alternative Obligations. 

Art. 884. In alternative obligations, the choice belongs 
to the debtor, if not otherwise stipulated. 

§ 1. The debtor cannot, however, oblige the creditor to 
receive part in one prestation and part in another. 

§ 2. When the obligation is for annual prestations, it 
shall be understood that the debtor has the right to exer- 
cise the option each year. 

Art. 885. If one of two prestations could not be the ob- 
ject of an obligation, or becomes undemandable {inexe 
quivel) , the debt shall subsist with respect to the other. 

Art. 886. If, through the fault of the debtor, neither of 
the prestations can be performed, and the choice does not 
belong to the creditor, the former shall be obliged to pay 
the value of the one which last became impossible {se im- 



192 CIVIL CODE OF BRAZIL. 

possibilitou), besides the losses and damages which result 
{que caso determinar). 

Art. 887. When the creditor is entitled to the choice, 
and one of the prestations becomes impossible through the 
fault of the debtor, the creditor shall have the right to re- 
quire either the subsisting prestation or the value of the 
other, with losses and damages. 

If, by fault of the debtor, both become undemandable 
{iiwxequiveis) , the creditor may demand the value of 
either of the two, besides indemnization for losses and dam- 
ages. 

Art. 888. If all the prestations become impossible, with- 
out fault of the debtor, the obligation is extinguished. 

CHAPTEE V. 
Op Divisible and Indivisible Obligations. 

Art. 889. Although the obligation has for its object a 
divisible prestation, the creditor cannot be obliged to re- 
ceive, nor the debtor to pay, by parts, if it were not so 
agreed. 

Art. 890. If there is more than one debtor or more than 
one creditor in a divisible obligation, this is presumed di- 
vided into as many obligations, equal and distinct, as there 
are creditors or debtors. 

Art. 891. If there are two or more debtors, and the 
prestation is not divisible, each one shall be obligated for 
the whole debt. 

Single Paragraph. The debtor who pays the debt is 
subrogated to the right of the creditor in relation to the 
other co-obligees. 

Art. 892. If there is a plurality of creditors, each one of 



DIVISIBLE AND INDIVISIBLE CONTRACTS. 193 

these may demand the entire debt. But the debtor or 
debtors shall be discharged (se desobrigardo) by paying: 

I. To all jointly. 

II. To one, he giving bond for the ratification of the 
other creditors. 

Art. 893. If only one of the creditors receives the presta- 
tion entire, each of the others shall have the right to de- 
mand of him in money the part to which he is entitled of 
the total. 

Art. 894. If one of the creditors remits the debt, ^he 
obligation shall not be extinct with respect to the others ; 
but they can only demand it less the quota of the remitting 
creditor. 

Single Paragraph. The same rule shall be observed in 
the case of compromise, novation, set-off or confusion. 

Art. 895. The obligation which is resolved by losses and 
damages, loses the quality of indivisibility. 

§ 1. If, in such event {para esse effeifo), all of the debt- 
ors are at fault, they shall all respond in equal parts. 

§ 2. If one of them only is at fault, he only shall re- 
spond for losses and damages, and the others shall be 
exonerated. 

CHAPTER VI. 

Of Solidaey Obligations. 

Section I. (General Dispositions. 

Art. 896. Solidarity is not presumed; it results from 
the law or from the will of the parties. 

Single Paragraph. Solidarity occurs when in the same 
obligation there concur more than one creditor, or more 
than one debtor, each one with right to, or obligated for, 
the whole debt. 



194 CIVIL CODE OF BRAZIL. 

Art. 897. The solidary obligation {oirigagao solidaria) 
may be pure and simple for one of the co-creditors or co- 
debtors, and conditional, or on time, for the other. 

Section II. Of Active Solidarity. 

Art. 898. Each of the solidary creditors has the right 
to require of the debtor the performance of the prestation 
entire. 

Art. 899. So long as any of the solidary creditors does 
not sue {demandar) the common debtor, he may pay any 
one of them. 

Art. 900. The payment made to one of the solidary 
creditors entirely extinguishes the debt. 

Single Paragraph. The same effect results from nova- 
tion, set-off, and remission. 

Art. 901. If one of the solidary creditors should de- 
cease, leaving heirs, each of these only has the right to de- 
mand and receive the quota of the credit which corresponds 
to his hereditary share, unless the obligation is indivisible. 

Art. 902. If the prestation is made by payment of 
losses and damages, the solidarity subsists, and the interest 
due on account of the delay accrues for the benefit of all 
the creditors. 

Art. 903. The creditor who has remitted the debt or re- 
ceived payment, shall respond to the others for the part to 
which they are entitled. 

Section III. Of Passive Solidarity. 

Art. 904. The creditor has the right to demand and 
receive the common debt in part or in whole from one or 
any of the debtors. 



PASSIVE SOLIDARITY. 195 

In the first case, all the other debtors continue solidarily 
obligated for the balance. 

Art. 905. If one of the solidary debtors dies, leaving 
heirs, each of these shall only be obliged to pay the quota 
which corresponds with his hereditai-y share, unless the 
obligation is indivisible; but all together shall be consid- 
ered as one solidary debtor in relation to the other debtors. 

Art. 906. The partial payment made by one of the debt- 
ors, and the remission obtained by him, do not benefit the 
other debtors, except to the extent (concorrencia) of the 
amount paid, or remitted (relevada). 

Art. 907. Any clause, condition, or additional obliga- 
tion, stipulated between one of the solidary debtors and 
the creditor, cannot aggravate the position of the others 
without their consent. 

Art. 908. If the prestation becomes impossible through 
the fault of one of the solidary debtors, the obligation (en- 
cargo) of paying the equivalent subsists for all; but the 
party at fault alone responds for the losses and damages. 

Art. 909. All the debtors respond for the interest by 
reason of the delay, although the action has been brought 
only against one; but the one at fault responds to the 
others for the increased obligation. 

Art. 910. The creditor who brings an action against one 
of the solidary debtors, is not prevented from suing (ac- 
cionar) the others. 

Art. 911. The debtor sued may plead against the cred- 
itor the defenses (excepsoes) which are personal to him- 
self and those which are common to all; he cannot benefit, 
however, by those personal to another co-debtor. 



196 CIVIL CODE OF BRAZIL. 

Art. 912. The creditor may renounce the solidarity in 
favor of one, of some, or of all of the debtors. 

Single Paragraph. If the creditor exonerates one or 
more debtors from the solidarity, he shall only have the 
right to sue the others upon deducting from the debt the 
part corresponding to the debtors whose obligation he re- 
mitted (Art. 914). 

Art. 913. The debtor who satisfies the debt in full, has 
the right to require each of the co-debtors to contribute his 
quota, and if any of them is insolvent, his quota shall be 
equally divided between all of them. The parts of all the 
co-debtors in the debt are presumed equal. 

Art. 914. In the event of contribution {rateio) between 
the co-debtors for the insolvent debtor's share in the obli- 
gation (Art. 913), those who have been exonerated from 
the solidarity by the creditor (Art. 912), shall also con- 
tribute. 

Art. 915. If the solidary debt concerns (interessar) ex- 
clusively one of the debtors, he shall respond for all of it 
to the one who pays {para com aquelle que pagar). 

CHAPTER VII. 

Op the Penal Clause. 

Art. 916. The penal clause may be stipulated together 
with the obligation or in a subsequent act. 

Art. 917. The penal clause may relate to the complete 
non-performance (inexecugao) of the obligation, to that of 
any special clause, or simply to delay. 

Art. 918. "When the penal clause is stipulated for the 
case of total non-performance {inadimplemenio) of the ob- 
ligation, the latter shall be converted into an alternative 
for the benefit of the creditor. 



PENAL CLAUSES. 197 

Art. 919. When the penal clause is stipulated for the 
case of delay, or as special security for another specified 
clause, the creditor shall have the right {arhitrio) to re- 
quire the satisfaction of the penalty stipulated (commi- 
nada), jointly with the performance {desempenho) of the 
principal ohligation. 

Art. 920. The value of the penalty (comminaQao) im- 
posed in the penal clause cannot exceed that of the prin- 
cipal obligation. 

Art. 921. The debtor incurs legal liability {incorre de 
plena direito na) under the penal clause, upon the maturity 
of the period of the obligation, or, if there is none, as soon 
as he becomes in default (se constitua em mora). 

Art. 922. The nullity of the obligation involves {im- 
porta) that of the penal clause. 

Art. 923. When the obligation is resolved without the 
fault of the debtor, the penal clause is resolved. 

Art. 924. When the obligation is performed in part, the 
judge may reduce proportionally the penalty stipulated 
for the ease of default or non-performance. 

Art. 925. If the obligation is indivisible, and one of 
them is in default, all the debtors and their heirs shall be 
liable for (incorrerao) the penalty; but this can be de- 
manded integrally only from the one at fault (o culpado). 
Each of the others responds only for his quota. 

Single Paragraph. Those not in default have the re- 
gressive action against the one who gave cause for the appli- 
cation of the penalty. 

Art. 926. When the obligation is divisible, only the debt- 
or, or the heir of the debtor, who infringed it, incurs in the 
penalty, and proportionally to his part in the obligation, 



198 CIVIL CODE OF BRAZIL." 

Art. 927. In order to require the conventional penalty, 
it is not necessary for the creditor to plead damage (pre- 
juizo) . 

The debtor cannot relieve (eximir-se) himself from com- 
plying with it, upon the pretext that it is excessive. 



TITLE II. 
Of the Effects of Obligations. 

CHAPTER I. 

General Dispositions. 

Art. 928. The obligation, if not entirely personal {per- 
sonalissima) , is effective {opera) not only between the 
parties, but between their heirs. 

Art. 929. He who has promised the act {facto) of a 
third person shall respond for losses and damages, when 
the latter does not perform it. 

CHAPTER II. 
Of Payment. 
Section I. Of Who Must Pay. 

Art. 930. Anyone interested in the extinction of the 
obligation may pay it, and if the creditor objects {se op- 
pilfer) , he may use the means necessary for the exoneration 
of the debtor. 

Single Paragraph. A third person who is not interested, 
has the same right, if he does it {se o fizer) in the name and 
for the account of the debtor. 

Art. 931. The third person not interested, who pays the 
debt in his own name, has the right to be reimbursed for 



PAYMENT. 199 

what he pays ; but he is not subrogated in the rights of the 
creditor. 

Single Paragraph. If he pays before the debt is due 
(vencida), he shall only have right to reimbursement at its 
maturity. 

Art. 932. If the debtor objects, for good cause, to the 
payment of his debt by another, but the latter should, 
nevertheless, effect the payment, the debtor shall not be 
obliged to reimburse him, except to the extent that it may 
benefit him (senao ate a importancia em que Ihe elle 
aproveite). 

Art. 933. The payment vrhich involves the transmission 
of ownership (propriedade) , shall only be valid (valerd) 
when made by one who can alienate the object given in pay- 
ment (em que elle consistiu). 

Single Paragraph. If, however, a fun^ble thing is 
given in payment, it cannot again (mcds) be reclaimed from 
the creditor who, in good faith, received it and consumed it, 
although the person giving it in payment (o solvente) did 
not have the right to alienate it. 

Section II. Of Those Who Must Be Paid. 

Art. 934. The payment must be made to the creditor 
or to one who lawfully represents him, under penalty of its 
being valid only after it is ratified by him, or so far as it 
may have been to his benefit. 

Art. 935. The payment made in good faith to the 
reputed (putativo) creditor is valid, although it is after- 
wards proven that he was not a creditor. 

Art. 936. The payment knowingly made, however, to a 
creditor incapable of giving acquittance (quitar) is not 
valid, if the debtor does not prove that it effectively oper- 
ated to his benefit. 



200 CIVIL CODE OP BRAZIL. 

Art. 937. The bearer of the acquittance is considered 
authorized to receive the payment, unless the circum- 
stances contradict the presumption arising therefrom. 

Art. 938. If the debtor pays the creditor in spite of 
having notice {intimado) of a levy (penhora) made upon 
the credit, or of the objection {impugnagao opposta) made 
to it by third persons, the payment will not be valid against 
them, and they may constrain the debtor to pay anew (rfe 
novo), saving to him, however, regressive action (_regresso) 
against the creditor. 

Section III. Of the Object of the Payment and Its Proof. 

Art. 939. The debtor who pays has the right to a regular 
acquittance (Art. 940), and may retain the payment until 
it is given to him. 

Art. 940. The acquittance shall designate the value and 
the kind (especie) of debt acquitted, the name of the debtor, 
or whoever paid for him, the time and place of the pay- 
ment, with the signature of the creditor or of his repre- 
sentative. 

Art. 941. If the creditor refuses the acquittance or does 
not give it in due form (Art. 940), the debtor may cite him 
for that purpose (fim) , and shall be acquitted by the sen- 
tence which condemns the creditor. 

Art. 942. In debts of which the acquittance consists in 
the return of the title, if this is lost, the debtor may retain 
the payment and require the declaration of the creditor, 
which shall render useless (inutiUze) the lost {sumido) 
title. 

Art. 943. When the payment is in periodical quotas, the 
acquittance for the last one establishes, until proof to the 



PAYMENT. 201 

contrary, the presumption that the preceding ones Avere 
paid (solvidas). 

Art. 944. If the acquittance is for the capital without 
recital {reserva) as to interest, this is presumed paid. 

Art. 945. The delivery of the title to the debtor creates 
(,firma) the presumption of payment. 

§ 1. The acquittance thus obtained (operada) shall be 
without effect, however, if the creditor, within sixty days, 
proves non-payment. 

§ 2. This proof is not permitted when the acquittance is 
given by public instrument {escriptura publica). 

Art. 946. The expenses of the payment and acquittance 
are presumed to be at the charge of the debtor. If, how- 
ever, the creditor changes his domicile or dies, leaving heirs 
in different places, the increased expense shall be on ac- 
count of the creditor. 

Art. 947. The payment in money, without determination 
of the kind {especie), shall be in the money current in the 
place of the performance of the obligation. 

§ 1. It is, however, lawful for the parties to stipulate 
that it may be effected in a certain and determined kind 
of money, national or foreign. 

§ 2. The debtor, in the case of the preceding paragraph, 
may, however, choose between payment in the kind desig- 
nated in the title and its equivalent in money current ia 
the place of the prestation, at the exchange of the day of 
maturity. If there is no quotation on that day, that imme- 
diately preceding shall apply. 

§ 3. When the debtor is in default and the rate {agio) 
has varied between the date of maturity and that of pay- 



202 CIVIL CODE OP BRAZIL. 

ment, the creditor may choose one of them, if no fixed 
exchange is stipulated. 

§ 4. If the quotation varied on the same day, the average 
of the market on that date shall be taken as a basis. 

Art. 948. In indemnizations for an unlawful act {facto) 
the value most favorable to the injured person (lesado) 
shall prevail. 

Art. 949. If the payment is to be made by measure, or 
weight, it is understood, in the silence of the parties, that 
they accept those of the place of performance. 

Section IV. Of the Place of Payment. 

Art. 950. The payment shall be effected in the domicile 
of the debtor, unless the parties otherwise agree, or the 
circumstances, the nature of the obligation or the law other- 
wise provide (dispuzerem) . 

■Single Paragraph. If two or more places are designated, 
the creditor has the choice between them. 

Art. 951. If the payment consists in the tradition of an 
immovable, or ia prestations relative to an immovable, it 
shall be made at the place where this is. 

Section V. Of the Time of Payment, 

Art. 952. Saving special disposition of this Code, and if 
no time {epoca) has been fixed for payment, the creditor 
may require it immediately. 

Art. 953. Conditional obligations are performed on the 
date of the fulfillment (implemento) of the condition, the 
creditor being bound to prove that the debtor had knowl- 
edge of it. 

Art. 954. The creditor shall have the right to collect the 



PAYMENT. 203 

debt before the expiration of the time stipulated in the 
contract or provided in this Code : 

I. If, upon execution against the debtor, the concourse 
of creditors {concur so creditorio) is opened. 

II. If property, mortgaged, pledged or given in anti- 
chresis, is levied upon in esecution by another creditor. 

III. If the guaranties of the debt, fidejussory or real, 
cease or become insufficient, and the debtor, after being 
notified, refuses to make them good (reforgal-as) . 

Single Paragraph. In the cases covered by this Article, 
if the debt is one of passive solidarity (Arts. 904 to 915), 
it shall not be considered as matured with respect to the 
other solvent debtors. 

Section VI. Of Default (Mora). 

Art. 955. The debtor who does not effect the payment, 
and the creditor who does not wish to accept it in the time, 
place and form agreed (Art. 1058), are considered in 
default (mora). 

Art. 956. The debtor responds for the damages which 
his default may cause (Art. 1058). 

Single Paragraph. If the prestation, by reason of the 
default, becomes useless to the creditor, he may refuse to 
accept it (engeital-a) and require satisfaction of the losses 
and damages. 

Art. 957. The debtor in default (em mora) responds for 
the impossibility of the prestation, although such impossi- 
bility results from fortuitous event or vis major, if the same 
occurred during the delay (atrazo) ; unless it is proved 
that he was without fault, or that the damage would have 
occurred (sobreviria) although the obligation had been 
opportunely performed (Art. 1058). 



204 CIVIL CODE OF BRAZIL. 

Art. 958. The default of the creditor relieves the debtor 
who acted without deceit (dolo) from responsibility for the 
preservation of the thing, and obliges the creditor to reim- 
burse the expenses incurred in preserving it, and to receive 
it at its highest value {estimaQao), if its value fluctuated 
between the time of the contract and that of payment. 

Art. 959. The default is purged {purga-se a mora) : 

I. On the part of the debtor, by his offering the presta- 
tion, plus the amount of the damages (prejuizos) accruing 
up to the day of the offer. 

II. On the part of the creditor, by his offering to re- 
ceive the payment and submitting to the effects of the de- 
fault up to the same date. 

III. On the part of both, by the one who deems him- 
self prejudiced by it, renouncing the rights which accrued 
to him thereby. 

Art. 690. The non-performance (inadimplemento) of 
the obligation, positive and liquid, within its term, consti- 
tutes the debtor in default, by force of law. 

If no period has been fixed, the default begins from the 
interpellation, notification, or protest. 

Art. 961. In negative obligations, the debtor is con- 
stituted in default from the day on which he does the act 
from which he should abstain. 

Art. 962. In obligations arising from crime (delicto), 
the debtor is considered in default from the time that he 
perpetrated it. 

Art. 963. If there is no act (facto) or omission im- 
putable to the debtor, he does not incur in default (em 
mora). 



UNDUE PAYMENT. 205 

Section VII. Of Undue Payment. 

Art. 964. Every one who receives that which is not due 
to him is obliged to restore it. 

The same obligation rests upon {incumbe ao) him who 
receives a conditional debt before the condition is fulfilled. 

Art. 965. He who voluntarily paid what he did not 
owe (o indevido), must prove that he did it through error. 

Art. 966. "With respect to the fruits, accessions, im- 
provements and deteriorations accruing to the thing given 
in undue payment, the provisions of Arts. 510 to 519 apply. 

Art. 967. If he who unduly received an immovable has 
alienated it, he must assist the proprietor in the rectifi.ea- 
tion of the register, in the terms of Art. 860. 

Art. 968. If he who unduly received an immovable has 
alienated it in good faith, by onerous title, he responds 
only for the price received; but, if he acted in bad faith, 
besides the value of the immovable, he responds for losses 
and damages. 

Single Paragraph. If the immovable was alienated by 
gratuitous title, or if, being alienated by onerous title, the 
third person acquiring it acted in bad faith, the person 
who paid through error has the right of recovery {reivin- 
dicagdo). 

Art. 969. He is exempt from restoring an undue pay- 
ment who, upon receiving in on account of a true debt, 
cancelled (inutilisou) the title, let the action prescribe or 
released (ahriu mdo) the guaranties which secured his 
right; but he who paid has a regressive action against the 
true debtor and his surety. 

Art. 970. That which was paid to settle (solver) a pre- 
scribed debt or to perform a natural obligation, cannot be 
recovered (repetir). 



206 CIVIL CODE OP BKAZIL. 

Art. 971. He who gave something in order to attain an 
illicit, or immoral end, or one prohibited by law, has no 
right of recovery. 

CHAPTER III. 

Of Payment By Consignation. 

Art. 972. The judicial deposit of the thing due, in legal 
form, and in cases where the law permits it, is considered 
payment and extinguishes the debt. 

Art. 973. Consignation may be made {tern logour) : 

I. If the creditor, without just cause, refuses to receive 
the payment or to give acquittance in due form. 

II. If the creditor is not present, or does not order the 
thing to be received in the proper {devidas) place, time 
and conditions. 

III. If the creditor is unknown, has been declared an 
absentee, or resides in a place uncertain, or of dangerous 
and difScult access. 

IV. If doubt arises in regard to who should legitimately 
receive the object of the payment. 

V. If a lawsuit is pending about the payment. 

VI. If there is a concourse of preference opened against 
the creditor, or if he is incapable of receiving the pay- 
ment. 

Art. 974. In order that the consignation may have the 
force of payment, it is necessary {mister) that all the 
requisites, with relation to the persons, the object, the man- 
ner and time, without which the payment is not valid, must 
concur. 

Art. 975. In the cases of Art. 973, nos. I, II and III, 
the creditor shall be cited to come or send some one to re- 
ceive {mandar receber), and in the case of the same Article, 
no. VII, to prove his right. 



CONSIGNATION IN PAYMENT. 207 

Art. 976. The deposit shall be required in the place of 
payment, and, unless it is adjudged inadmissible {improce- 
dente), the interest on the debt and the risks shall cease 
for the depositor, as soon as it is effected. 

Art. 977. So long as (emquanto) the creditor does not 
declare that he accepts the deposit, or does not object to it 
{impugnar) , the debtor may withdraw it (requerer o le- 
vantamento) , upon paying the expenses incurred, and the 
obligation subsists for all legal consequences. 

Art. 978. If the deposit is adjudged admissible {proce- 
dente) the debtor cannot withdraw it, although the cred- 
itor consents, without the consent of the other debtors and 
sureties. 

Art. 979. The creditor who, after answering the suit 
(lide) or accepting the deposit, acquiesces in the with- 
drawal {levantamento) , shall lose the preference and 
guaranty which he had with respect to the thing con- 
signed, and the co-debtors and sureties who did not con- 
sent are at once discharged (desobrigados) . 

Art. 980. If the thing due is a certain object (corpo) 
which is to be delivered in the same place where it is, the 
debtor may cite the creditor to come or send to receive 
it, under penalty of its being deposited. 

Art. 981. If the choice of an undetermined thing be- 
longs to the creditor, he shall be cited for this purpose, 
under penalty {comminaQoo) of losing the right and of the 
deposit of the thing which the debtor chooses. Upon the 
choice being made by the debtor, the procedure of the pre- 
ceding Article shall be observed. 

Art. 982. The expenses of the deposit, when it is ad- 
judged admissible (procedente) , shall be at the account of 



208 CIVIL CODE OP BRAZIL. 

the creditor, and in the contrary case, at the account of the 
debtor. 

Art. 983. The debtor of a litigious obligation shall be 
exonerated by making consignation, but if he pays either 
of the claimant creditors, having knowledge of the suit 
(litigio), he shall assume the risk of payment. 

Art. 984. If the debt matures pending a suit (litigio) 
between creditors who are attempting mutually to exclude 
each other, either of them may require the consignation. 

CHAPTER VI. 

Op Payment With Subrogation. 

Art. 985. Subrogation occurs, by operation of law {de 
plena direito), in favor: 

I. Of the creditor who pays the debt of the common 
debtor to the creditor who was entitled to the right of pre- 
ference. 

II. Of the grantee (adquirente) of the mortgaged im- 
movable, who pays the mortgage creditor. 

III. Of the interested third person, who pays the debt 
for which he was or might be obligated, in whole or in 
part. 

Art. 986. Subrogation is conventional: 

I. When the creditor receives payment from a third 
person and expressly transfers to him all his rights. 

II. When a third person lends to the debtor the amount 
necessary to settle the debt under the express condition 
that the lender (mutuant e) shall be subrogated in the 
rights of the satisfied creditor. 

Art. 987. In the case (hypothese) of the preceding Ar- 
ticle, no. I, the provisions in regard to the cession of cred- 
its (Arts. 1065 to 1078) shall apply (vigorard). 



APPLICATION OF PAYMENT. 209 

Art. 988. Subrogation transfers to the new creditor all 
the rights, actions, liens (privilegios) and guaranties of 
the original one {primitivo), in relation to the debt, against 
the principal debtor and his sureties. 

Art. 989. In the legal subrogation the party subrogated 
cannot exercise the rights and actions of the creditor, ex- 
cept to the extent of the sum which he has disbursed in 
order to discharge (desohrigar) the debtor. 

Art. 990. The original creditor, reimbursed only in 
part, shall have preference over the subrogated one, in the 
collection of the remaining debt, if the property of the 
debtor is not sufficient to settle (saldar) entirely what he 
owes to them both (a um e outro dever) . 

CHAPTER V. 

Of the Imputation of Payment. 

Art. 991. The person obligated for two or more debts of 
the same nature to one sole creditor, has the right to indi- 
cate which of them he offers to pay, if all are liquid and due 
(vencidos). 

Without consent of the creditor, application (imputaQdo) 
shall not be made to the payment of a debt not liquid or 
not due. 

Art. 992. If the debtor has not declared to which of the 
liquid and matured debts he wishes to impute the payment, 
he shall not have the right, if he accepts the acquittance of 
one of them, to object to (reclamar contra) the imputation 
made by the creditor, except by proving that he committed 
violence or deceit (dolo). 

Art. 993. If the capital and interest are both due, the 
payment shall be imputed first to the interest matured, and 
afterwards to the capital, saving stipulation to the con- 



210 CIVIL CODE OP BRAZIL. 

trary, or if the creditor gives the acquittance on account of 
the capital. 

Art. 994. If the debtor does not make the indication of 
Art. 991, and if the acquittance is silent (omissa) in regard 
to the imputation, it shall be made in the first place as to 
debts liquid and due. 

If the debts are all liquid and due at the same time, the 
imputation shall be made to the most onerous. 

CHAPTER VI. 

Of Dation in Payment (Daqao). 

Art. 995. The creditor may consent to receive a thing 
which is not money, in substitution of the prestation which 
is due him. 

Art. 996. "Where the price of the thing given in payment 
is determined, the relations between the parties shall be gov- 
erned by the rules (normas) of the contract of purchase 
and sale (compra e venda). 

Art. 997. If the thing given in payment is a title of 
credit, the transfer amounts to an assignment {import ar a 
em cessdo). 

Art. 998. If the creditor is evicted from the thing re- 
ceived in payment, the original obligation shall be re-estab- 
lished, and the acquittance given is without effect. 

CHAPTER VII. 

Op Novation (NovAgio) . 

Art. 999. Novation occurs (dd-se) : 

I. When the debtor contracts with the creditor a new 
debt, in order to extinguish and substitute the previous 
one. 



NOVATION. 211 

II. "When a new debtor succeeds the old one, the latter 
being acquitted {quite com) by the creditor. 

III. When, by virtue of a new obligation, another cred- 
itor is substituted for the old, the debtor being acquitted 
{quite com) by the latter. 

Art. 1000. If there is no intention to novate {animo de 
novar), the second obligation simply confirms the first. 

Art. 1001. Novation by substitution of debtor may be 
effected without the consent of the latter. 

Art. 1002. If the new debtor is insolvent, the creditor, 
who accepted him, has no regressive action against the first, 
unless the latter obtained the substitution in bad faith. 

Art. 1003. Novation extinguishes the accessories and 
guaranties of the debt, provided there is no stipulation to 
the contrary. 

Art. 1004. It shall not, however, avail the creditor to 
make a reservation {resalvar) in the mortgage, antichresis 
or pledge, if the property given in guaranty belongs to a 
third person who was not a party to the novation. 

Art. 1005. When the novation is effected between the 
creditor and one of the solidary debtors, the preferences 
and guaranties of the new credits subsists only with re- 
spect to {sohre) the property of the one who contracted 
the new obligation. 

Single Paragraph. The other solidary debtors are by 
that act {facto) exonerated. 

Art. 1006. The novation made without his consent, with 
the principal debtor, exonerates the surety. 

Art. 1007. Void or extinct obligations cannot be val- 
idated by novation. 

Art. 1008. The obligation which is simply voidable may 
be confirmed by the novation. 



212 CIVIL CODE OF BRAZIL. 

CHAPTER VIII. 

On^COMPENSATION ( CoMPENSAQAO) . 

Art. 1009. If two persons are at the same time creditor 
and debtor one of the other, the two obligations are extin- 
guished, so far as they compensate (set-off) each other 
{se compensarem) . 

Art. 1010. Compensation (set-off) is effected between 
liquid and matured debts, and with fungible things. 

Art. 1011. Although the fungible things which are the 
object of the two prestations, are of the same kind, they 
will not compensate each other if it appear that they differ 
in quality, when this is specified in the contract. 

Art. 1012. Prestations of uncertain things cannot be 
compensated (nao sao compensaveis) , when the choice be- 
longs to the two creditors, or to one of them as debtor 
of one of the obligations and creditor of the other. 

Art. 1013. The debtor can only compensate with the 
creditor what the latter owes him ; but the surety may com- 
pensate his debt with that of his creditor to the principal 
{ao afiangado) . 

Art. 1014. Days of grace (os prazos de favor), although 
consecrated by general usage, do not prevent the compen- 
sation. 

Art. 1015. The difference of cause of the debts does not 
prevent compensation, except : 

I. If one arises from wrongful dispossession {eshulho), 
theft or robbery. 

II. If one originates from commodatum, deposit, or ali- 
ments. 

III. If one is of a thing not susceptible of levy (pen- 
hora) . 



SET-OFF. 213 

Art. 1016. Compensation cannot be effected, if it was 
previously renounced by one of the debtors. 

Art. 1017. The fiscal debts of the Union, of the States 
and of the Municipios also cannot be the object of compen- 
sation, except in the cases of set-off (encontro) between the 
administration and the debtor, authorized by law and the 
Treasury Eegulations. 

Art. 1018. There shall be no compensation when the 
creditor and the debtor by mutual consent exclude it. 

Art. 1019. Where a person obligates himself for a third 
person, he cannot compensate that debt with that which the 
creditor" of such third person owes him. 

Art. 1020. The solidary debtor can only compensate 
with the creditor what the latter owes to his co-obligor, so 
far as the equivalent of the latter 's part in the common 
debt. 

Art. 1021. The debtor who, being notified, makes no ob- 
jection to the assignment (cessao) which the creditor makes 
of his rights to third persons, cannot oppose to the assignee 
{cessionario) the compensation which, before the assign- 
ment, he could have opposed to the assignor {cedewte). If, 
however, he was not notified of the assignment, he may 
oppose to the assignee the compensation of credit which he 
had before against the assignor. 

Art. 1022. When the two debts are not payable in the 
same place, they cannot be compensated without deduction 
of the necessary expenses of the operation. 

Art. 1023. Where the same person is obligated for sev- 
eral compensable debts, the rules established in regard to 
imputation of payment (Arts. 991 to 994) shall be ob- 
served in compensating them. 



214 



CIVIL CODE OF BRAZIL. 



Art. 1024. Compensation is not admitted to the pre- 
judice of the rights of third persons. The debtor who be- 
comes the creditor of his creditor, cannot, after the credit 
of the latter has been seized in levy (penhorado) , oppose to 
the execution creditor (exequente) the compensation which 
he would have had against the creditor himself. 

CHAPTER IX. 

Op Compromise (Transacqao). 

Art. 1025. It is lawful for the interested parties to pre- 
vent or to terminate a law suit (litigio) by means of mu- 
tual concessions. 

Art. 1026. If any of the clauses of the transaction 
(transacgao) is void, it shall be void. 

Single Paragraph. When the compromise (transacQao) 
relates to several contested rights, and it is not valid as to 
one, it is, nevertheless, valid as to the others. 

Art. 1027. Transaction is strictly interpreted. Rights 
are not transmitted by it; they are hardly {apenas) de- 
clared or acknowledged. 

Art. 1028. If the transaction relates to rights contested 
in a suit (em juizo) , it shall be effected : 

I. By entry of record (termo nos autos), signed by the 
compromising parties (transigentes) and approved {homo- 
logado) by the judge. 

II. By notarial act {escriptura puhlica) in obligations 
in which the law requires such act, or by private instru- 
ment in those cases in which this is permitted. 

Art. 1029. If there is as yet no suit {litigio), the trans- 
action shall be effected by that one of the modes indicated 
in the preceding Article, no. II, which is applicable to the 
case. 



COMPROMISE. 215 

Art. 1030. The transaction produces between the parties 
the effect of res ad judicata (coisa julgada), and is only 
rescinded for deceit (dolo), violence, or essential error in 
respect to the person or thing in controversy {controversa) . 

Art. 1031. The transaction benefits, or prejudices, only 
those who are parties to it, although it may have reference 
to (diga respeito a) an indivisible thing. 

§ 1. If it is concluded between the creditor and the 
principal debtor, the surety is discharged. 

§ 2. If concluded between one of the solidary creditors 
and the debtor, the obligation of the latter with respect to 
the other creditors is extinguished. 

§ 3. If between one of the solidary debtors and his cred- 
itor, the debt is extinguished with respect to the co-debtors. 

Art. 1032. In the case of eviction of the thing renounced 
by one of the parties to the compromise (transigentes) , or 
transferred by him to another party, the obligation extin- 
guished by the transaction is not revived; but the party 
evicted (o evicto) has the right to claim losses and dam- 
ages. 

Single Paragraph. If one of the parties {transigentes) , 
after the transaction, acquires a new right to the thing re- 
nounced or transferred, the transaction made shall not pre- 
vent him from exercising it. 

Art. 1033. The transaction concerning obligations re- 
sulting from crime {delicto) does not extinguish {perime) 
the penal action of public justice. 

Art. 1034. The conventional penalty is admissible in 
the transaction. 

Art. 1035. Only in respect to patrimonial right of a 
private character, is transaction permitted. 



216 CIVIL CODE OP BRAZIL. 

Art. 1036. THe transaction with respect to a lawsuit 
(litigio) decided by final judgment is void, if some of the 
parties (transigentes) had no knowledge of it, or when, 
by a title subsequently discovered, it appears that none 
{nenhum) of them had any right to the object of the trans- 
action. 

CHAPTEE X. 

Op Arbitration (Compromisso). 

Art. 1037. Persons capable of contracting may, at any 
time, by means of a written agreement (compromisso) agree 
(louvar-se) upon arbiters (arhitros), who may settle judi- 
cial or extrajudicial controversies (pendencias) for them. 

Art. 1038. Arbitration {compromisso) is judicial or ex- 
trajudicial. 

The former may be effected by entry of record {termo 
nos autos), before the judge or tribunal where the suit is 
pending; the second, by public or private act (escriptura) , 
signed by the parties and two witnesses. 

Art. 1039. The compromise agreement, besides the 
object of the suit submitted to it, shall contain the names, 
surnames and domicile of the arbiters, as well as those of 
the substitutes appointed to take their place in the event 
of failure or impediment. 

Art. 1040. The compromise agreement may also declare : 

I. The period within which the arbitral decision must 
be given. 

II. The condition as to its being executed with or with- 
out recourse to the superior tribunal. 

III. The penalty, in favor of the other party, to which 
the party is obligated who takes recourse (recorrer) against 
the decision, notwithstanding the clause "without re- 



ABBITKATION. 217 

course." This penalty shall not exceed the third of the 
value in suit (pleito). 

IV. The authorization given to the arbiters to decide 
{julgar) according to equity, outside of the rules and 
forms of law (direito). 

V. The authorization given to them to appoint a third 
arbiter, in case of disagreement {caso divirjam), if the 
parties have not appointed him. 

VI. The fees of the arbiters and the proportion in 
which they shall be paid. 

Art. 1041. The arbiters are judges of fact and of law, 
and their judgment is not subject to appeal (alzada) or 
recourse, unless the parties have otherwise agreed. 

Art. 1042. If the parties have not appointed the third 
arbiter, nor authorized his appointment by the others (Art. 
1040, no. V), the disagreement between the two arbiters 
shall extinguish the compromise. 

Art. 1043. Any one who has the confidence of the par- 
ties may be arbiter, if he is not forbidden by law. 

Art. 1044. The arbitral suit {juizo arbitral) being in- 
stituted, judicially or extrajudicially, the suit shall run its 
course (termos), according to the process established in the 
laws of procedure. 

Art. 1045. The arbitral sentence shall only be executed 
after being judicially approved (homologado) , unless it is 
rendered by a judge of first or second instance, as an 
arbiter appointed by the parties. 

Art. 1046. Although the compromise contains the clause 
"without recourse" and a conventional penalty against the 
party who does not submit to it {insubmissa) , the latter 
shall have the right of recourse to the tribunal, either in 
case of the nullity or extinction of the compromise, or in 



218 CIVIL CODE OF BRAZIL. 

case that the arbiter has exceeded his powers. 

Single Paragraph. Before such recourse, which shall be 
governed by the law of procedure, shall be taken, the 
amount of the penalty must be deposited, or a sufficient 
(idonea) bond be given for its payment. 

Art. 1047. The sustaining (provimento) of the recourse 
imports the annulment of the conventional penalty. 

Art. 1048. The provisions in respect to compromise. 
(Arts. 1025 to 1036), shall be applied, so far as possible, to 
arbitration. 

CHAPTER XI. 

Of Confusion (Mebgee). 

Art. 1049. The obligation is extinguished, when the 
characters {qualidades) of creditor and debtor are merged 
{se confundam) in the same person. 

Art. 1050. The confusion (merger) may take place with 
respect to the whole debt, or only a part of it. 

Art. 1051. If the confusion takes place in the person of 
a solidary creditor or debtor it only extinguishes the obliga- 
tion to the extent of the equivalence (ata a concorrencia) 
of the respective parts of the credit or of the debt, the 
solidarity subsisting with respect to the remainder (ao 
mais). 

Art. 1052. When the confusion ceases, the previous ob- 
ligation, with all its accessories, is at once re-established. 

CHAPTER XII. 

Of the Remission of Debts. 

Art. 1053. The voluntary delivery of the title of the 
debt, when evidenced by private instrument (escripto), 
proves the exoneration of the debtor and his co-obligors, if 



EFFECTS OF NON-PERFORMANCE. 219 

the creditor is capable of alienating, and the debtor cap- 
able of acquiring. 

Art. 1054. The delivery of the object pledged proves 
the renouncement by the creditor of the real guaranty, but 
not the extinction of the debt. 

Art. 1055. The remission granted to one of the co-debt- 
ors extinguishes the debt in the part corresponding to him ; 
so that, although the creditor reserves the solidarity against 
the others, he cannot collect the debt without deduction of 
the part remitted. 

CHAPTER XIII. 

Op the Consequences op the Non-Performance of 
Obligations. 

Art. 1056. If the debtor does not perform the obliga- 
tion, or fails to perform it in due manner and time, he re- 
sponds for losses and damages. 

Art. 1057. In unilateral contracts, the contracting 
party whom the contract favors, responds for simple fault 
(culpa), and the one whom it does not favor, only for de- 
ceit (dolo). 

In bilateral contracts each of the parties responds for 
fault (culpa). 

Art. 1058. The debtor does not respond for damages 
(prejuizos) resulting from accident (caso fortuito) or vis 
major (forga maior), if he has not expressly assumed re- 
sponsibility therefor, except in the eases of Arts. 955, 956 
and 957. 

Single Paragraph. Accident (caso fortuito), or vis 
major (forga maior) occurs from a necessary act (verifica- 
se no facto necessario) , the effects of which it was not pos- 
sible to avert or impede (evitar ou impedir) . 



220 CIVIL CODE OF BRAZIL. 

CHAPTER XIV. 

Op Losses and Damages (Perdas e Damnos). 

Art. 1059. Saving the exceptions expressly indicated 
(previstas) in this Code, the losses and damages {perdas e 
damnos) due to the creditor include, besides what he effect- 
ively lost, what he reasonably failed to gain (deixou de 
lucrar) . 

Single Paragraph. The debtor, however, who did not 
pay in due time and form, only responds for the gains 
(lucros) which were or could be foreseen at the date of the 
obligation. 

Art. 1060. Although the non-performance results from 
the deceit (dolo) of the debtor, the losses and damages 
only include the damages (prejuizos) caused {effectivos) 
and the gains lost {cessantes) by the direct and immediate 
effect of it. 

Art. 1061. The losses and damages in obligations for 
payment in money, consist of the interest for delay (da 
mora) and costs, without prejudice to the conventional 
penalty. 

CHAPTER XV. 

Op Legal Interest (Juros). 

Art. 1062. The rate (taxa) of moratory interest, when 
it is not agreed upon (Art. 1262), shall be six per cent per 
annum. 

Art. 1063. Interest due by force of law, or when the 
parties agreed for it without stipulated rate, shall also be 
six per cent per annum. 

Art. 1064. Although no damage (prejuieo) is alleged, 
the debtor is obliged for the interest for delay, which shall 



ASSIGNMENT OF CREDITS. 221 

be counted not only upon debts in money, but also upon 
prestations of another nature, from the time {desde que) 
that their pecuniary value is fixed by judicial sentence, 
arbitrament, or agreement between the parties. 

TITLE III. 

Of the Assignment of Credit (Oessao). 

Art. 1065. The creditor may assign (ceder) his credit, 
if the nature of the obligation, the law, or the agreement 
with the debtor does not forbid {nao se oppuzer) . 

Art. 1066. Saving provision to the contrary, the assign- 
ment of a credit embraces all its accessories. 

Art. 1067. The assignment of a credit is not valid as to 
third persons, if it is not executed {celebrar) by a public 
instrument, or by private instrument executed with {reves- 
tir) the solemnities of Art. 135 (Art. 1068). 

Single Paragraph. The assignee (cessionario) of a hy- 
pothecary credit has the right, as being subrogated {como 
subrogado) , to have the assignment inscribed on the mar- 
gin of the principal inscription. 

Art. 1068. The provisions of the preceding Article, first 
part, do not apply to the transfer of credits by operation 
of law or sentence. 

Art. 1069. The assignment of credit is not valid with 
relation to the debtor, except when he is notified of it ; but 
the debtor is considered (se tern por) notified, who, in a 
public or private instrument (escripio), declares himself 
as having knowledge (sciente) of the assignment made. 

Art. 1070. If there are (occorrendo) several assign- 
ments of the same credit, the one completed by the tradi- 
tion of the title of the credit assigned, prevails. 



222 CIVIL CODE OF BRAZIL. 

Art. 1071. The debtor is discharged who, before having 
knowledge of the assignment, pays the original creditor 
who, in the ease of more than one assignment notified to 
him, pays the assignee who presents to him, together with 
the instrument (titulo) of assignment, the evidence (titulo) 
of the obligation. 

Art. 1072. The debtor may oppose to the assignee as 
well as to the assignor the defences (excepgdes) which he 
had at the time when he received knowledge of the assign- 
ment; but he cannot oppose to the assignee in good faith 
the simulation of the assignor (cedente). 

Art. 1073. In assignment by onerous title, the assignor, 
although he does not assume responsibility {se nao respon- 
sibilize), is responsible to the assignee for the existence of 
the credit at the time he assigned it to him. He has the 
same responsibility in assignments by gratuitous title, if 
he acted in bad faith. 

Art. 1074. Saving stipulation to the contrary, the as- 
signor does not respond for the solvency of the debtor. 

Art. 1075. The assignor, who is responsible to the as- 
signee for the solvency of the debtor, does not respond for 
more than he received, with interest; but he must reim- 
burse him for the expenses of the assignment and those 
which the assignee may have made in the collection. 

Art. 1076. When the transfer of the credit is effected 
by force of law, the original creditor does not respond for 
the reality of the debt nor for the solvency of the debtor. 

Art. 1077. The credit, when once levied upon {pen- 
horado), cannot be again transferred by the creditor hav- 
ing knowledge of the levy ; but the debtor who pays it with- 
out having notification of it, is exonerated, the rights of 
third persons subsisting only against the creditor. 



CONTRACTS. 223 

Art. 1078. The provisions of this Title apply to the 
assignment of other rights for which there may be no 
special mode of transfer. 

TITLE IV. 
Of Contracts. 

CHAPTER I. 

General Dispositions. 

Art. 1079. The manifestation of the will in contracts 
may be tacit, when the law does not require that it be 
express. 

Art. 1080. The offer (proposta) of the contract obli- 
gates the offerer {proponent e) , if the contrary does not 
result from the terms of it, or from the nature of the busi- 
ness, or from the circumstances of the case. 

Art. 1081. The offer ceases to be obligatory : 

I. If, being made without time limit (prazo) to a per- 
son present, it was not immediately accepted. 

A person is considered also as present who contracts by 
means of the telephone. 

II. If, being made without time limit {prazo) to a per- 
son absent, sufficient time has elapsed (decorrido) for the 
reply to come (chegar) to the knowledge of the offerer. 

III. If, made to a person absent, he has not forwarded 
(expedita) the reply within the time given. 

IV. If, before reply, or simultaneously with it, the 
retraction of the proponent comes to the knowledge of the 
other party. 

Art. 1082. If the acceptance, by an unforseen circum- 
stance, comes late to the knowledge of the proponent, he 



224 CIYIL CODE OF BKAZIL. 

shall communicate it immediately to the acceptor, unden 
penalty of responding for losses and damages. 

Art. 1083. The acceptance out of time {fora do prazo), 
with additions, restrictions, or modifications, amounts to 
(importard) a new offer. 

Art. 1084. If the business (negocio) is one of those in 
which an express acceptance is not customary, or the pro- 
ponent has dispensed with it, the contract is deemed closed, 
when the refusal (recitsa) does not arrive in time. 

Art. 1085. The acceptance is considered as non-exist- 
ent, if before it or with it the retraction of the acceptor 
reaches the proponent. 

Art. 1086. Contracts by epistolary or telegraphic corre- 
spondence, become perfected from the sending of (e ex- 
pedita) the acceptance, except: 

I. In the case of the preceding Article. 

II. If the proponent has agreed (compromeitido) to 
await a reply. 

III. If it does not arrive within the time agreed. 

Art. 1087. The contract is reputed as made {celehrado) 
in the place in which it was proposed. 

Art. 1088. When a public instrument is required as 
proof of the contract, either of the parties may retract 
{arrepender-se) before signing it, reimbursing to the other 
the losses and damages resulting from the retraction, with- 
out prejudice to the provisions of Arts. 1095 to 1097. 

Art. 1089. The inheritance (heranga) of a living per- 
son can not be the object of a contract. 

Art. 1090. Beneficial contracts shall be interpreted 
strictly. 



BILATERAL CONTRACTS. 225 

Art. 1091. The impossibility of the prestation does not 
invalidate the contract, if it is relative, or ceases before the 
condition is fulfilled. 

CHAPTER II. 

Of Bilateral Contracts. 

Art. 1092. In bilateral contracts, neither of the con- 
tracting parties, before complying with his obligation, can 
require the performance {implemento) of that of the other. 

If, after the contract is concluded, either of the contract- 
ing parties should suffer {sobrevier a) a diminution of his 
estate (patrimonio) , capable of compromising or rendering 
doubtful the prestation for which he obligated himself, thi' 
party whose duty is it to make the prestation in the first 
place, may refuse it until the other satisfies what he is 
bound to do, or gives a sufficient guaranty to satisfy it. 

Single Paragraph. The party injured by the non-per- 
formance may require the rescission of the contract with 
losses and damages. 

Art. 1093. The retraction (distracto) is made in the 
same form as the contract. But the acquittance is valid, 
whatever its form may be, 

CHAPTER III. 

Op Earnest (Arrhas). 

Art. 1094. The sign, or earnest (arrhas) given by one 
of the contracting parties confirms (firma) the presumption 
of final accord, and renders the contract obligatory. 

Art. 1095. The parties may, however, stipulate the right 
to retract notwithstanding the earnest given. In such case, 
if the retractor (o arrependido) is the one who gave it, he 
shall lose it to the benefit of the other ; if the one who re- 
ceives it, he shall restore it two-fold {em ddbro). 



226 CIVIL CODE OF BRAZIL. 

Art. 1096. Saving stipulation to the contrary, the earn- 
est money (arrhas em dinheiro) is considered the begin- 
ning of payment. Except in that case (fora esse caso), it 
must be restored, when the contract is concluded or is un- 
done (desfeito). 

Art. 1097. If he who gave the earnest causes the presta- 
tion to become impossible, or the contract to be rescinded, 
he shall lose it to the benefit of the other. 

CHAPTER IV. 

Op Stipulations in Favor of Third Persons. 

Art. 1098. He who stipulates in favor of a third person 
may require the performance of the obligation. 

Single Paragraph. The third person in whose favor the 
obligation was stipulated, is also permitted to require it, he 
being, however, subject to the conditions and terms {nor- 
mas) of the contract, if he consented to it, and the maker 
of the stipulation (estipulante) has not changed (innovar) 
it, in the terms of Art. 1100. 

Art. 1099. If the third person, in whose favor the con- 
tract was made, was given the right to demand its per- 
formance, the maker of the stipulation cannot exonerate 
the debtor. 

Art. 1100. The maker of the stipulation (estipulante) 
may reserve to himself the right to substitute the third per- 
son designated in the contract, independently of his con- 
sent and of that of the other contracting party (Art. 1098, 
Single Paragraph). 

Single Paragraph. Such substitution may be made by 
act inter vivos or by disposition of last will. 



REDHIBITORY VICES. 227 

CHAPTER V. 
Of Redhibitory Vices. 

Art. 1101. The thing received by virtue of a commuta- 
tive contract may be rejected for occult vices or defects, 
which render it inappropriate for the use to which it is 
intended, or diminish its value. 

Single Paragraph. The provisions of this Article are 
applicable to donations encumbered with a charge {en- 
cargo). 

Art. 1102. Saving express clause in the contract, ignor- 
ance of such vices on the part of the alienor does not 
exempt him from responsibility (Art. 1103). 

Art. 1103. If the alienor knew the vice or defect, he 
shall restore what he received together with losses and 
damages ; if he did not know of it, he shall only restore the 
value received, plus the expenses of the contract. 

Art. 1104. The responsibility of the alienor subsists, al- 
though the thing perishes in the power of the alienee, if it 
perished by reason of an occult vice already existing at the 
time of tradition. 

Art. 1105. Instead of rejecting the thing, and rescind- 
ing (redhibindo) the contract (Art. 1101), the acquirer 
may demand an abatement of the price (Art. 178, § 2 and 
§3, no. IV). 

Art. 1106. If the thing was sold at public sale (em hasta 
puMica), the redhibitory action, or that for abatement of 
price does not lie {cabe). 



228 CIVIL CODE OP BRAZIL. 

CHAPTER VI. 

Of Eviction. 

Art. 1107. In onerous contracts, by which ownership 
(dominio), possession or use is transferred, the alienor shall 
be obligated to secure (resguardar) the acquirer against 
the risks of eviction, provided that this responsibility was 
not expressly excluded. 

Single Paragraph. The parties may increase [reforgar) 
or diminish this guaranty. 

Art. 1108. Notwithstanding the clause which excludes 
the guaranty against eviction (Art. 1107), if this .takes 
place {se der), the party evicted (o evicto) has the right 
to recover the price which he paid for the thing evicted, 
if he did not know of the risk of eviction, or, if informed 
of it, did not assume it. 

Art. 1109. Saving stipulation to the contrary, the party 
evicted has the right, besides the integral restitution of the 
price, or of the amounts, which he paid : 

I. To indemnization for the fruits which he has been 
obliged to restore. 

II. To indemnization for the expenses of the contracts 
and of the damages (prejuizos) which directly resulted 
from the eviction. 

III. To the judicial costs. 

Art. 1110. This obligation subsists for the alienor al- 
though the thing alienated may be deteriorated, except in 
case of the deceit {dolo) of the acquirer. 

Art. 1111. If the acquirer has obtained advantages from 
the deterioration, and has not been condemned to indem- 
nify them, the value of the advantages shall be deducted 
from the amount which the alienor must give him. 



EVICTION. 229 

Art. 1112. The necessary or useful improvements, not 
reimbursed (abonadas) to the party suffering eviction, shall 
be paid by the alienor. 

Art. 1113. If the improvements for which the party 
suffering eviction has been reimbursed, were made by the 
alienor, their value shall be taken into account in making 
the restitution due. 

Art. 1114. If the eviction is partial, but considerable, 
the evicted party may elect between the rescission of the 
contract and the restitution of the part of the price corre- 
sponding to the abatement (desfalque) suffered. 

Art. 1115. The amount of the abatement, in the case 
(hypothese) of the preceding Article, shall be calculated in 
proportion to the value of the thing at the time it happened 
{evenceu). 

Art. 1116. In order to exercise the right which results 
to him from the eviction, the acquirer shall notify the 
alienor of the suit, in the time and manner which the laws 
of procedure may determine. 

Art. 1117. The acquirer cannot sue on account of evic- 
tion: 

I. If he was deprived of the thing, not by judicial 
means, but by accident, vis major, robbery or theft. 

II. If he knew that the thing belonged to another or 
was litigious. 

CHAPTER VII. 

Of Aleatory Contracts. 

Art. 1113. If the contract is aleatory, by reason of relat- 
ing (por dizer a respeito a) to future things, the risk of the 
coming into existence of which is assumed by the acquirer, 
the alienor is entitled to the entire price, if there has been 



230 



CIVIL CODE OF BRAZIL. 



no fault (culpa) on his part, although absolutely nothing 
of them comes into existence. 

Art. 1119. If it is aleatory by reason of its object being 
future things, and the acquirer takes upon himself the risk 
of their coming into existence in any quantity, the alienor 
shall also have the right to the whole price, provided that 
no fault (culpa) on his part has concurred, although the 
thing came into existence in a quantity inferior to that 
which was expected. 

Single Paragraph. But, if nothing of the thing came 
into existence, there will be no alienation, and the acquirer 
shall restore the price received. 

Art. 1120. If it is aleatory, because referring to things 
existing, but subject to risk assumed by the acquirer, the 
alienor shall likewise be entitled to the whole price, pro- 
vided that the thing did not (jd nao) exist in whole or in 
part, on the day of the contract. 

Art. 1121. The aleatory alienation of the preceding Ar- 
ticle may be annulled as fraudulent (dolosa) by the injured 
party, if he proves that the other contracting party was 
not ignorant of the consummation of the risk, to which in 
the contract the thing was considered to be exposed. 

TITLE V. 
Of the Several Kinds of Contracts. 

CHAPTER I. 

Of Purchase and Sale ('Compra e Venda) . 

Section I. General Dispositions. 

Art. 1122. By the contract of purchase and sale (com- 
pra e venda) , one of the contracting parties obligates him- 
self to transfer the ownership (dominio) of a certain thing, 
and the other, to pay him a certain price in money. 



PURCHASE AND SALE. 231 

Art. 1128. The fixation of the price may be left to the 
arbitrament of a third person, whom the contracting par- 
ties at once (logo) designate or promise to designate. If 
the third person does not accept the duty (incumbencia) , 
the contract will remain without effect, unless the parties 
agree to designate another person. 

Art. 1124. The fixation of the price may also be left at 
the rate (taxa) of the market or exchange (bolsa), of a 
certain and determined day and place. 

Art. 1125. The contract of purchase and sale is void, 
when the fixing (taxagao) of the price is left to the ex- 
elusive determination (arbitrio) of one of the parties. 

Art. 1126. The purchase and sale, when unconditional 
(pura), is considered as obligatory and perfected from the 
time that the parties agree upon the object and price. 

Art. 1127. Until the moment of tradition, the risks of 
the thing are to the account of the vendor, and those of the 
price to the account of the buyer. 

§ 1. However, accidents (os casos fortwitos) occurring 
in the act of counting, marking, or setting apart (assig- 
nalar) things, which commonly are received by counting, 
weighing, measuring or setting apart, and which have al- 
ready been placed at the disposition of the buyer, are to 
the account of the latter. 

§ 2. The risks of the aforesaid things are also to the 
account of the buyer, if he is in default {mora) in receiv- 
ing them, when placed at his disposition at the time and 
place and in the manner agreed upon (ajustados). 

Art. 1128. If the thing is forwarded {expedida) to a 
different place, by order of the buyer, the risks will be to 
his account, after they are delivered to the person who is to 



232 CIVIL CODE OF BRAZIL. 

transport them, unless the vendor departed from the in- 
structions given him (delle) by the buyer. 

Art. 1129. Saving clause to the contrary, the expenses 
of the instrument (escriptura) shall be to the charge 
(cargo) of the buyer, and those of tradition to that of the 
seller. 

Art. 1130. If the sale is not on credit, the vendor is not 
obliged to deliver the thing before receiving the price. 

Art. 1131. Notwithstanding the term agreed upon for 
payment, if the buyer becomes insolvent before the tradi- 
tion, the vendor may suspend {sohrestar) the delivery of 
the thing, until the buyer gives him a bond to pay in the 
time agreed. 

Art. 1132. Ascendants cannot sell to descendants, un- 
less the other descendants expressly consent. 

Art. 1133. The following things cannot be bought, even 
at public sale {hasta publica) : 

I. By guardians, curators, executors and administrators, 
the property entrusted to their care or administration. 

II. By mandatories, the property, with the administra- 
tion or alienation of which they are charged. 

III. By public employes, the property of the Union, of 
the States or of the Municipios, which are under their ad- 
ministration, direct or indirect. The same disposition 
applies to the judges, arbitrators, or experts (peritos) who, 
in any manner, may influence the act or the price of the 
sale. 

IV. By judges, employes of the treasury, secretaries of 
tribunals, clerks (escrivaes) or other ofiicials of justice, the 
property, or rights, which are in litigation (sobre que se 
litigar) in the tribunal, court [juizo) or council, in the 



PURCHASE AND SALE. 233 

place where these functionaries serve, or to which their 
authority extends. 

Art. 1134. This prohibition comprehends the sale or 
assignment of credit, unless it is either between co-heirs, or 
in payment of debt, or for guaranty of property already 
belonging to persons designated in the preceding Article, 
no. IV. 

Art. 1135. If the sale is made by sample (a vista de 
amostras), it is understood that the vendor assures the 
thing sold to have the qualities shown by the sample. 

. Art. 1136. If in the sale of an immovable, the price is 
stipulated according to measurement, or the area of it ia 
stated as determined, and the area does not correspond, in 
either of the cases, to the dimensions given, the buyer has 
the right to require that the area be made good (o comple- 
mento da area), and if this is not possible, he has the right 
to demand the rescission of the contract or the proportional 
abatement of the price. He has not this right, however, if 
the immovable was sold as a certain and determined (dii- 
criminada) thing, the reference to its dimensions being 
merely declaratory {enunciativa) . 

Single Paragraph. It is presumed that the reference to 
the dimensions was simply enunciative, when the difference 
found does not exceed one-twentieth of the total extension 
enounced. 

Art. 1137. In every instrument (escriptura) of transfer 
of immovables, there shall be transcribed the certificates 
showing that they have settled (se acharem quites) with 
the Federal, State or Municipal Treasury for any taxes to 
which they may be subject. 

Single Paragraph, The negative certificate exonerates 
the immovable and exempts the acquirer from all respon- 
sibility. 



234 



CIVIL CODE OF BRAZIL. 



Art. 1138. In things sold jointly, the occult defect of 
one does not authorize the rejection of all; 

Art. 1139. A joint-owner {condominio) of an indivisible 
thing cannot sell his part to strangers, if the other joint- 
owner {consort e) wishes it, for the same price {ianto por 
tanto). The joint-owner who is not notified of the sale, 
may, upon depositing the price, have for himself the part 
sold to a stranger, if he makes demand for it {o reqtierer) 
within the term of six months. 

Single Paragraph. If the joint-owners are many, the 
one who has improvements of greatest value shall be pre- 
ferred, and, in default of improvements, the one having 
the greatest share. If the shares are equal, the co-pro- 
prietors who wish it, shall have the part sold, upon first 
depositing the price. 

Section II. Of Special Clauses in Purchase and Sale. 
Of Re-Purchase (Retrovenda) . 

Art. 1140. The vendor may reserve to himself the right 
to recover, within a certain term {prazo) the immovable 
which he sold, upon restoring the price plus the expenses 
incurred by the purchaser. 

Single Paragraph. The vendor shall also in this case 
reimburse the purchaser for the expenses employed in im- 
provements upon the immovable, to the extent of the value 
added by these improvements to the property. 

Art. 1141. The term for the redemption, or retraction, 
shall not exceed three years, under penalty of being held as 
not agreed upon {nao escripto) ; it being presumed that the 
maximum term is stipulated, when the parties have not de- 
termined it. 

Single Paragraph. The term of retraction, expressed or 
presumed, prevails even against an incapable. Upon, the 



SALES ON APPROVAL. 235 

expiration of the term, the right of retraction is extin- 
guished, and the sale becomes irretractable. 

Art. 1142. In the re-purchase {retrovenda) , the vendor 
preserves his action against third persons acquiring the re- 
purchased thing (retrovendida) , although they did not 
know of the clause of retraction. 

Art. 1143. If more than one person has the right of re- 
traction upon the same thing, and only one exercises it, the 
purchaser may give notice to the others in order that they 
may agree upon it. 

§ 1. If the interested parties fail to agree, or one of 
them does not wish to come in with the entire amount of 
the retraction, the right of all shall expire (caducard). 

§ 2. If the different co-owners of the alienated estate 
do not retract it (nao retrovenderam) jointly and by the 
same act, each one for himself may exercise his right of 
retraction upon the respective share, without the purchaser 
having the right to require the others to redeem it as a 
whole. 

Of Sales Upon Approval {A contento). 

Art. 1144. The sale upon approval (a contento) is con- 
sidered made upon suspensive condition, if in the contract 
it has not been given expressly the character of a resolutive 
condition. 

Single Paragraph. In this species of sale is included 
that of goods (generos) which it is customary to try (pro- 
var), measure, weigh, or experiment with, before being 
accepted. 

Art. 1145. The obligations of the buyer who receives 
the thing bought upon suspensive condition, are those of a 
mere bailee (commodatario) so long as he does not mani- 
fest his acceptance of it. 



236 CIVIL CODE OP BRAZIL. 

Art. 1146. If the buyer makes no declaration within 
the time (prazo), the sale shall be reputed as perfected, 
whether the condition be suspensive or resolutive ; the pay- 
ment of the price, in the first case, being taken as an expres- 
sion that he accepts the thing sold. 

Art. 1147. If no time is stipulated for the declaration 
of the buyer, the seller has the right to notify him judi- 
cially to make it within a fixed and certain (improrogavel) 
time, under penalty of the sale being considered as per- 
fected. 

Art. 1148. The right resulting from the sale upon ap- 
proval (a content o) is simply personal. 

Of Pre-emption or Preference. 

Art. 1149. Pre-emption, or preferemcfe, imposes upon 
the buyer the obligation to offer to the vendor the thing 
which the former is going to sell, or give in payment, in 
order that the latter may make use of his right of prelation 
in the purchase, at the same price {tanto por tanto). 

Art. 1150. The Union, the State, or the Municipio, shall 
offer to the ex-proprietor the immovable expropriated at 
the price at which it was taken, in the event that it is not 
used for the purpose {nao tenha o destino) for which it 
was expropriated. 

Art. 1151. The vendor may also exercise his right of 
prelation, by giving notice of it to the purchaser, when he 
has knowledge that the latter is going to sell the thing. 

Art. 1152. The right of pre-emption extends only to the 
situations indicated in Arts. 1149 and 1150, and to no other 
real right than that of ownership {propriedade) . 

Art. 1153. The right of pre-emption shall be lost (cadw- 



EIGHT OP PREFERENCE. 237 

card) if not exercised in three days, if the thing is a mov- 
able, and, if an immovable, if it is not exercised within 
thirty days subsequent to that on which the buyer had 
advised (affrontado) the seller. 

Art. 1154. When the right of pre-emption is stipulated 
in favor of two or more individuals in common, it can only 
be exercised with relation to the thing as a whole. If any 
of the persons entitled to it, loses or does not exercise his 
right, the others may make use of it in the form aforesaid. 

Art. 1155. He who exercises the preference is obliged, 
under penalty of losing it, to pay, on like conditions, the- 
price found or agreed upon. 

Art. 1156. The buyer shall respond for losses and dam- 
ages, if he did not give to the vendor knowledge of the 
price and advantages which are offered him for the thing. 

Art. 1157. The right of preference cannot be assigned, 
nor does it pass to the heirs. 

Of the Pact of Better Buyer. 

Art. 1158. The contract of purchase and sale may be 
made with a clause of revocation (de se desfazer), if, within 
a certain time, anyone should appear and make a more 
advantageous offer {offerega maior vantagem) . 

This time shall not exceed one year, and the clause shall 
only be effective {vigorard) between the contracting parties. 

Art. 1159. The pact of better buyer is good {vale) as a 
resolutive condition, saving agreement to the contrary. 

Art. 1160. This pact cannot exist in the sale of mov- 
ables. 

Art. 1161. The buyer has the preference over (prefere 



238 CIVIIi CODE OP BRAZIL. 

a quern) the person who offers equal advantages shall be 
offered. 

Art. 1162. If, within the term fixed, the seller does not 
accept an offer of greater advantage, the sale shall be re- 
garded as definitive. 

Of the Commissory Pact. 

Art. 1163. When it is agreed that the sale shall be re- 
scinded (se desfaga) if the price is not paid by a certain 
day, the seller, if not paid, may rescind (desfazer) the con- 
tract, or demand the price. 

Single Paragraph. If, in such case, the seller does not 
demand the price within ten days after the time is expired, 
the sale shall remain rescinded as matter of law. 

CHAPTER II. 

Op Exchange (Teoca). 

Art. 1164. The dispositions referring to purchase and 
sale are applied to exchange {troga), with the following 
modifications : 

I. Saving disposition to the contrary, each of the con- 
tracting parties shall pay one-half of the expenses of the 
contract (instrumento) of exchange. 

II. Unequal exchanges between ascendants and de- 
scendants, without the express consent of the other de- 
scendants, are void. 

CHAPTER III. 

Op Donation. 

Section I. General Dispositions. 

Art. 1165. The contract by which one person, through 
liberality, transfers from his own patrimony property or 



DONATIONS. 239 

advantages to that of another, who accepts them, is con- 
sidered donation. 

Art. 1166. The donor may affix a term for the donee to 
declare whether he accepts the liberality or not. When the 
donee, knowing of the term, does not make the declaration 
within it, it shall be understood that he accepted, if the 
donation is not subject to a charge. 

Art. 1167. The donation made in contemplation of the 
deserts (merecimento) of the donee does not lose the char- 
acter of liberality, neither does the remuneratory or encum- 
bered donation lose such character, so far as it exceeds the 
value of the services remunerated or of the change im- 
posed. 

Art. 1168. The donation shall be made by public act or 
by private instrument (Art. 134). 

Single Paragraph. The verbal donation shall be valid, 
if it concerns movable property of small value and is imme- 
diately followed by tradition. 

Art. 1169. The donation made to one unborn {ao nas- 
cituro) shall be valid, if accepted by the parents. 

Art. 1170. Persons who cannot contract are empowered, 
however, to accept unconditional {pur as) donations. 

Art. 1171. The donation by the parents to the children 
imports an advancement of the inheritance (legitima). 

Art. 1172. The donation in the form of a periodical 
subvention to the beneficiary is extinguished by the death 
of the donor, unless otherwise provided by him. 

Art. 1173. The donation made in contemplation of fu- 
ture marriage with a certain and determined person, 
whether by the engaged parties {nubentes) between them- 
selves, or by a third person to one of them, to both, or to 



240 crpiL CODE OF brazil. 

the children which, in the future, they may have of each 
other, cannot be impugned for want of acceptance, and 
shall only be ineffective if the marriage is not realized. 

Art. 1174. The donor may stipulate that the property 
donated shall return to his patrimony if he survives the 
donee. 

Art. 1175. The donation of all his property, without 
reservation of a part, or sufficient income {rendu) for the 
support of the donor, is void. 

Art. 1176. The donation is also void with respect to the 
part, which exceeds that which the donor, at the time of 
the liberality, could dispose of by testament. 

Art. 1177. The donation of the adulterous spouse to his 
or her accomplice may be annulled by the other spouse, or 
his or her necessary heirs within {ate) two years after the 
dissolution of the conjugal society (Arts. 178, § 7, no. VI 
and 248, no. IV). 

Art. 1178. Saving declaration to the contrary, the dona- 
tion in common to more than one person is understood as 
distributed among them equally. 

Single Paragraph. If the donees, in such case, are hus- 
band and wife, the donation shall subsist in its entirety to 
the surviving spouse. 

Art. 1179. The donor is not obliged to pay moratory 
interest, nor is he subject to eviction, except in the ease 
of Art. 285. 

Art. 1180. The donee is obliged to comply with the 
charges {encargos) upon the donation, in the event that 
they are for the benefit of the donor, of a third person, or 
of the general interest. 

Single Paragraph. If the charge {encargo) is of this 



REVOCATION OP DONATIONS. 241 

latter kind, the Ministerio Publico may require its execu- 
tion, after the death of the donor, if he has not done it. 

Section II. Of the Revocation of the Donation. 

Art. 1181. Besides the cases common to all contracts, 
the donation is also revoked by the ingratitude of the 
donee. 

Single Paragraph. The onerous donation may be re- 
voked for non-performance of the charge {encargo), when 
the donee becomes in default (incorrer em mora) . 

Art. 1182. The right to revoke the liberality for the 
ingratitude of the donee, cannot be renounced in advance. 

Art. 1183. Donations can only be revoked for ingrati- 
tude: 

I. If the donee attempted the life of the donor. 

II. If he committed a physical offence against him. 

III. If he insulted (injuriou) or calumniated him 
gravely. 

IV. If, being able to furnish them to him, he refused 
ailments to the donor, of which he was in need. 

Art. 1184. The revocation for any of these motives shall 
be sued for within one year, counted from the time that 
the fact which authorizes it came to the knowledge of the 
donor (Art. 178, § 6, no. I). 

Art. 1185. The right granted in the preceding Article 
is not transmitted to the heirs of the donor, nor does it pi'e- 
judice those of the donee. But the former may prosecute 
the action initiated by the donor, continuing it against thy 
heirs of the donee, if he should decease after answering the 
suit. 

Art. 1186. The revocation for ingratitude does not 
prejudice the rights acquired by a third person, nor does it 



242 CIVIL CODE OP BRAZIL. 

oblige the donee to restore the fruits -which he received be- 
fore answering the suit; but it subjects him to pay those 
subsequent thereto, and, when he cannot restore in kind 
the thing donated, to make indemnity for them at th') 
average {pelo meio iermo) of their value. 

Art. 1187. The following are not revoked for ingrati- 
tude: 

I. Donations purely remuneratory. 

II. Those encumbered with a charge {encargo). 

III. Those which are made in compliance with natural 
obligation. 

IV. Those for a determined marriage. 

CHAPTER IV. 

Of Renting and Hiring (Locaqao). 
Section I. Of the Hiring of Things. 

General Dispositions. 

Art. 1188. In the hiring (locagao) of things, one of the 
parties obligates himself to grant {ceder) to the other, for 
a determined time, or not, the use and enjoyment of a non- 
fungible thing, for a certain compensation {retribuQao) . 

Art. 1189. The lessor (locador) is obliged: 

I. To deliver to the hirer (locatorio) the thing hired, 
with its appurtenances (pertengas), in a condition to serve 
the purpose for which it is intended, and to maintain it in 
this condition during the time of the contract, saving 
express clause to the contrary. 

II. To guaranty to him, during the time of the con- 
tract, the pacific use of the thing. 

Art. 1190. If, during the location, the thing hired 
deteriorates, without the fault of the hirer (locatorio) he 



HIRING AND RENTING. 243 

may demand a proportional reduction of the rental (o 
aiuguer), or rescind the contract, in the, event that the 
thing no longer serves for the purpose for which it was 
intended. 

Art. 1191. The lessor (locador) shall protect (resguard- 
ard) the hirer from the annoyances and disturbances (em- 
baragoes e turhagoes) of third persons who may have or 
pretend to have rights to the thing hired (coisa alugada), 
and shall respond for its vices or defects anterior to the 
location. 

Art. 1192. The hirer (locatorio) is obliged: 

I. To make use of (servir-se de) the thing hired for the 
purposes agreed, or presumed, according to its nature and 
the circumstances, as well as to treat it with the same care 
as if it were his own. 

II. To pay the rental (o aiuguer) punctually within 
the terms agreed, and in default of agreement, according 
to the custom of the place. 

III. To bring to the knowledge of the lessor {locador) 
the claims {turhagoes) of third persons, which are claimed 
to be founded on right (Art. 1191). 

IV. To restore the thing at the end of the location, in 
the condition in which he received it, saving the deteriora- 
tions natural to its regular use. 

Art. 1193. If the hirer should employ the thing for a 
use different from that agreed, or from that for which it is 
intended, or if it is damaged by the abuse of the hirer, the 
lessor {locador), besides rescinding the contract, may de- 
mand losses and damages. 

Single Paragraph. When a term is stipulated for the 
duration of the contract, the locator cannot retake the thing 
hired before its expiration without reimbursing the hirer 



244 CIVIL CODK OP BRAZIL. 

for the losses and damages resulting, nor can the hirer 
return it to the locator without paying the rental for the 
time which remains {f altar). 

Art. 1194. The location for a determined time ceases by 
force of law upon the expiration of the time stipulated, 
independently of notification or notice (aviso). 

Art. 1195. If, upon the expiration of the term, the hirer 
continues in possession of the thing hired, without objection 
(opposigdo) of the locator, the location shall be presumed 
extended (prorogada) for the same rental, but without 
determined term. 

Art. 1196. If the hirer, being notified, does not restore 
the thing, he shall pay, so long as he has it in his power, the 
rental which the locator may see fit (arhitrar), and shall 
respond for the damage which it may suffer, although 
resulting from accident {caso fortuito). 

Art. 1197. If, during the location, the thing is alienated, 
the acquirer shall not be obliged to respect the contract, if 
it does not contain a clause providing for its remaining in 
effect in case of alienation, and appear recorded (constar) 
in the public register. 

Single Paragraph. In the locations of immovables, he 
cannot, however, oust (despedir) the hirer without observ- 
ing the terms (prazos) of Article 1209. 

Art. 1198. Upon the death of the locator, or of the hirer, 
the location for a determined time is transferred to his heirs. 

Art. 1199. It is not lawful for the hirer to retain the 
thing hired, except in the case of necessary improvements, 
or in that of useful improvements, if they have been made 
with the express consent of the locator. 



LEASES. 245 

//. Of the Location of Estates (Predios) . 

Art. 1200. The location of estates (predios) may be 
stipulated for any term (prazo). 

Art. 1201. If there is no express stipulation to the con- 
trary, the hirer, in locations for determined time, may sub- 
rent {sublocar) the estate, in whole or in part, before or 
after having received it, and may even lend it, continuing 
responsible to the locator for the preservation of the im- 
movable and the payment (solugao) of the rental. 

Single Paragraph. He may also assign the location, with 
the consent of the locator. 

Art. 1202. The sub-lessee (sublocatario) responds, sub- 
sidiarly, to the landlord (senhorio) for the amount which 
he owes to the sublessor (suhlocador) , when the latter is 
sued {demandado) , and even for the rentals which become 
due during the suit. 

§ 1. In such case, upon notice of the action being given 
to the sub-lessee, if he does not at once declare that he has 
advanced rentals to the sub-lessor, all receipts for advanced 
payments shall be presumed fraudulent, unless they appear 
in writing with authentic and certain date. 

§ 2. Saving the case of this Article, in the preceding 
dispositions, the sub-location does not establish rights or 
obligations between the sub-lessee and the landlord. 

Art. 1203. If the location is rescinded, or expired, thr3 
sub-locations are resolved, saving the right of indemniza- 
tion which the sub-lessee may have against the sub-lessor. 

Art. 1204. During the location, the landlord (o senhorio) 
cannot change the form or the use (destino) of the leased 
estate. 

Art. 1205. If the estate needs urgent repairs, the lessee 
shall be obliged to consent to them. 



246 CIVIL CODE OF BRAZIL. 

§ 1. If the repairs last more than fifteen days, he may 
demand a proportional abatement of the rental. 

§ 2. If they last more than a month, and prevent {tol- 
herem) the regular use of the estate, he may rescind the 
contract. 

Art. 1206. All repairs which the estate may need shall 
be made by {incumbirao) the locator, saving express clause 
to the contrary. 

Single Paragraph. The lessee is obliged to make upon 
the estate at his own account the small repairs for damages 
(estragos) which do not naturally arise from time or use. 

Art. 1207. The lessee has the right to require of the 
landlord, when the latter delivers the estate to him, a writ- 
ten statement of its condition. 

Art. 1208. The lessee shall respond for the burning 
(incendio) of the estate, if he does not prove accident {caso 
fortuito) or vis major, defective construction or propaga- 
tion of fire originating on another estate. 

Single Paragraph. If the estate has more than one 
tenant {inquilino), all shall respond for the fire {incendio), 
including the locator, if he lives upon it, each one in propor- 
tion to the part which he occupies, unless it is proven that 
the fire commenced in the part used by only one tenant 
(morador), who shall then be the only one responsible. 

Art. 1209. The lessee of the estate, upon being notified to 
surrender it (entregal-o) because the locator does not wish 
{por nao. convir) to continue the location for an undeter- 
mined term, has the period of one month to disoccupy it, 
if it is urban, and of six months, if rustic (Art. 1197, Single 
Paragraph). 



LEASES. 247 

III. Special Disposition as to Vrhan Estates. 

Art. 1210. If there is no stipulation to the contrary, the 
time of the location of an urban estate will be regulated by 
local usages. 

IV. Special Dispositions as to Rural Estates. 

Art. 1211. The lessee of a rustic estate shall use it for 
the purpose {no mister) for which it is intended, in such 
way that it be not damaged, under penalty of the rescission 
of the contract and satisfaction of losses and damages. 

Art. 1212. The location for an indefinite term is pre- 
sumed to be contracted for the time indispensable to the 
lessee for one crop. 

Art. 1213. In the location for an indetermined time, if 
the lessee does not wish to continue it, he shall notify the 
landlord six months before leaving it. 

Art. 1214. Saving agreement to the contrary, neither 
sterility nor the failure {mallogro) of the crop through 
accident {caso fortuito) authorizes the lessee to demand an 
abatement of the rental. 

Art. 1215. The lessee who is quitting {que sae) shall 
afford {franqueard) to the incoming one the use of the 
accommodations necessary for the latter to begin work ; and, 
reciprocally, the incoming lessee shall facilitate to the out- 
going one the use of whatever he needs for the crop, accord- 
ing to the custom of the place. 

Section II. Of the Location of Services. 

Art. 1216. Every kind of lawful service or work, ma- 
terial or immaterial, may be contracted for upon compen- 
sation. 



248 CIVIL CODE OP BRAZIL. 

Art. 1217. In the contract of location of services, when 
any of the parties cannot read or write, the instrument may 
be written and signed by request, and in this event, it must 
be signed by four witnesses. 

Art. 1218. If the compensation {retribugao) is not 
stipulated, nor the parties come to an agreement, the same 
shall be fixed by arbitrament, according to the custom of 
the place, the time of service and its quality. 

Art. 1219. The retribution shaU be paid after the ser- 
vice is rendered, if, by agreement or custom, it is not to be 
paid in advance, or paid in installments {prestagoes) . 

Art. 1220. The location of services cannot be contracted 
for more than four years, although the contract may have 
for its cause the payment of a debt of the locator or is 
intended for the execution of a certain and determined 
work. In this case, the contract shall be taken as terminated 
at the end of four years, although the work is not con- 
cluded (Art. 1225). 

Art. 1221. If no term is stipulated, and it is not in- 
ferred from the nature of the contract or from the custom 
of the place, either of the parties, at his will, and upon 
previous notice, may rescind the contract. 

Single Paragraph. The notice shall be given : 

I. Bight days in advance, if the salary has been fixed by 
the time of one month, or more. 

II. Four days in advance, if the salary has been agreed 
by the week or fortnight. 

III. The day before {de vespera), when it has been con- 
tracted for less than seven days. 

Art. 1222. In the contract of location of agricultural 
services, there being no term stipulated, it is presumed to 
be for one agricultural year, which terminates with the 



HIRING OF SERVICES. 249 

harvest or gathering (safra) of the principal crop {culttira) 
raised by the lessee (locatario). 

Art. 1223. The time in which the employe (locador), 
through his own fault, failed to serve, is not counted in the 
term of the contract. 

Art. 1224. If the employe {locador) was not contracted 
for a certain and determined work, it shall be understood 
that he obligated himself for every and any kind of service 
compatible with his strength and conditions. 

Art. 1225. The employe {locador) contracted for a cer- 
tain time or for a determined work, cannot absent himself 
or quit without just cause, before the time is fulfilled or the 
work is concluded (Art. 1220). 

Single Paragraph. If he quits (se despedir) without 
just cause, he shall have the right to the retribution become 
due (vencida), but shall respond for losses and damages. 

Art. 1226. Just causes for which the employe (locador) 
may end the contract, are : 

I. Having to exercise public functions, or discharge 
legal duties, either of which are incompatible with the con- 
tinuation of the service. 

II. Becoming disabled {inhaiilitado), by vis major, 
from fulfilling the contract. 

III. The employer (locatario) requiring of the employe 
services superior to his strength, forbidden by law, con- 
trary to good customs, or foreign to the contract. 

IV. The employer treating the employe with excessive 
rigor, or not giving him proper alimentation. 

V. The employe being exposed to manifest danger of 
damage (da/mno) or considerable harm (mal). 

VI. The employer not performing the obligations of the 
contract. 



250 



CIVIL CODE OP BRAZIL. 



VII. The employer offending or attempting to offend 
the employe in the honor of a person of his family. 

VIII. The employer dying. 

Art. 1227. The employe may take the contract as ended 
in any of the eases of the preceding Article, although he 
has agreed the contrary. 

§ 1. If he quits for any of the motives specified in the 
preceding Article, nos. I, II, V and VIII, the employe shall 
have the right to the remuneration become due, without 
any responsibility to the employer. 

§ 2. If he quits for any of the motives designated in that 
Article, nos. Ill, IV, Vl and VII, or for the failure {falta) 
of the employer in the case of no. V, he shall have the right 
to the compensation become due, together with that of the 
following Article. 

Art. 1228. The employer who without just cause dis- 
charges the employe, shall be obliged to pay him entirely 
the retribution become due, and one-half of that to which 
he would be entitled from then to the legal termination 
(termo) of the contract. 

Art. 1229. Just causes on the part of the employer for 
ending the contract, are : 

I. Vis major which prevents {impossibilite) him from 
fulfilling his obligations. 

II. Offence of the employe to the employer in the honor 
of a person of his family. 

III. Siekuess, or any other cause which renders the em- 
ploye unable to render the services contracted. 

IV. Vices or bad conduct of the employe. 

V. Failure (falta) of the employe in the observance of 
the contract. 

VI. "Want of skill {impericia) of the employe in the 
service contracted. 



HIRING 6p services. 251 

Art. 1230. In agricultural hiring, the employer is 
obliged to give to the employe a certificate {attest ado) that 
the contract is ended ; and, in the event of refusal, the judge 
having jurisdiction {a quern compete) must issue it, fining 
the recusant from 10O$000 to 200$000, in favor of the em- 
ploye. 

Tlie employer is under this same obligation if, without 
just cause, he dispenses with the services of the employe, 
or if the latter, for a justified motive, puts an end to the 
contract. 

However, if, in either of these cases {hypotheses), the 
employe is in debt, this circumstance shall be stated in the 
certificate, and the new employer will be responsible for 
the due payment. 

Art. 1231. The employer may discharge the employe for 
any of the causes specified in Art. 1229, although he has 
agreed the contrary. 

§ 1. If the employe is discharged for any of the causes 
there specified under nos. I, III and V, he shall have the 
right to the retribution become due, without any respon- 
sibility towards the employer. 

§ 2. If he is dismissed for any of the grounds there 
admitted under nos. II, IV and VI, he shall be entitled to 
the retribution become due, responding, however, for losses 
and damages. 

Art. 1232. Neither can the employer, although he may 
have otherwise contracted, transfer to another the right to 
the services agreed upon, nor can the employe, without the 
approval of the employer, furnish a substitute to perform 
them. 

Art. 1233. The contract of hiring {locagao) of services 
ends with the death of the employe {locador). 

Art. 1234. Although he may have stipulated otherwise, 



252 CIVIL CODE OF BRAZIL. 

the employer cannot collect from the employe interest upon 
the wages (soldadas) which he advances to him, nor, during 
the time of the contract, upon any debt which the employe 
may be paying with services. 

Art. 1235. He who entices away (alliciar) persons ob- 
ligated to another by hiring {locagao) of agricultural serv- 
ices, whether or not there is an instrument of contract, shall 
pay to the employer prejudiced thereby, double the amount 
which the employe would be entitled to receive, under the 
broken agreement {a juste desfeito) during four years. 

Art. 1236. The alienation of the agricultural estate 
where the contract (locagdo) of services is performed {se 
opera), does not involve the rescission of the contract; sav- 
ing to the employe the option between continuing it with 
the acquirer of the property, or with the previous em- 
ployer. 

Section III. Of Building Contracts (Empreitada) . 

Art. 1237. The contractor (empreiteiro) of a work 
(obra) may contribute to it either his work (trabalho) 
alone, or work and materials. 

Art. 1238. When the contractor furnishes the materials, 
the risks are at his account until the moment of the delivery 
of the work, to the satisfaction (a contento) of him who 
ordered it, if the latter is not in default in receiving it. 
If he is, the risks are equally at the account of the two 
parties. 

Art. 1239. If the contractor only furnished the Avork- 
manship (mao de obra), all the risks for which he was not 
at fault, are at the account of the owner. 

Art. 1240. Where the contract (empreitada) is only for 
labor (Art. 1239), if the thing perishes before delivery, 
without default (mora) of the owner, or fault (culpa) of 



BUILDING CONTRACTS. 253 

the contractor, the latter shall also lose his pay (salario), 
unless he proves that the loss resulted from defect of the 
materials, and that he objected {reclamdra) in time against 
their quantity or quality. 

Art. 1241. If the work consists (constar) of distinct 
parts, or is of the kind that is determined by measure, the 
contractor shall also have the right to have it verified by 
measure, or according to the parts into which it is divided. 

Single Paragraph. All that is paid for is presumed veri- 
fied. 

Art. 1242. When the work is concluded in accordance 
with the agreement (ajuste), or the custom of the place, 
the owner is obliged to receive it. He may, however, reject 
it, if the contractor departed from the instructions received 
and the plans furnished, or from the technical rules in 
works of such nature. 

Art. 1243. In the ease of the preceding Article, Second 
Part, he who ordered the work may, instead of rejecting it, 
receive it with an abatement of the price. 

Art. 1244. The contractor is obliged to pay for the ma- 
terials which he received, if he spoiled them (os inutilizar) 
through want of skill. 

Art. 1245. In building contracts for buildings or other 
considerable constructions, the contractor of materials and 
execution shall respond, during five years, for the solidity 
and safety of the work, as well by reason of the materials, 
as of the soil, unless, with respect to the latter, on finding 
it not to be firm, he wariied in time the owner of the work. 

Art. 1246. The architect, or builder (constructor) who, 
by a building contract (empreitada) , undertakes to execute 
a work according to plans accepted by the party who orders 
the work, shall not have the right to demand an increase 
of the price, although that of wages or oiaterial is increased 



254 CIVIL CODE OF BRAZIL. 

(encaresa), nor although the work agreed upon (ajiistada) 
was altered or increased, with relation to the plant (planta) 
unless it was increased, or altered, by written instructions 
from the other contracting party and exhibited by the con- 
tractor {empreiteiro) . 

Art. 1247. The owner of the work who, outside of the 
cases established in numbers III, IV and V of Art. 1229, 
rescinds the contract in spite of its execiAion being com- 
menced, shall indemnify the contractor for the expenses 
and for the work done, as well as for the gain {lucros) 
which he would have had, if he had finished the work. 

CHAPTER V. 

Op Loans (Emprestimo). 

Section I. Of Gommodatum (Commodato) . 

Art. 1248. Gommodatum is the gratuitous loan of non- 
fungible things. It is perfected by the tradition of the 
object. 

Art. 1249. Guardians, curators, and in general all ad- 
ministrators of the property of others, cannot give the 
property entrusted to their care, in commodatum without 
special authorization. 

Art. 1250. If the commodatum has no conventional term 
(prazo), it shall be presumed to be the time necessary for 
the use granted; the lender (conwnodante) cannot, saving 
an unforseen and urgent necessity, recognized by the judge, 
suspend the use and enjoyment of the thing loaned, before 
the expiration of the conventional term, or of that which 
is determined by the use granted. 

Art. 1251. The borrower (commodatario) is obliged to 
preserve the thing loaned as if it were his own, and he 
cannot use it except in accordance with the contract, or with 



LOANS — COMMODATUM. 255 

the nature of the thing, under penalty of responding for 
losses and damages. 

Art. 1252. If the borrower is in default, besides respond- 
ing for it, he shall pay the rent of the thing during the time 
of the delay (atrazo) in restoring it. 

Art. 1253. If the object of the loan is exposed to risk 
together with others of the borrower, and the latter should 
prefer the salvation of his own, abandoning that of the 
lender, he shall respond for the damage which may occur, 
although it may be attributed to accident {caso forttdto) 
or vis major. 

Art. 1254. The borrower can never recover from the 
lender the expenses incurred (feitas) by the use and enjoy- 
ment of the thing loaned. 

Art. 1255. If two or more persons are simultaneously 
borrowers of a thing, they shall be solidarily responsible 
to the lender. 

Section II. Of Mutuum {Mutuo) . 

Art. 1256. Mutuum is the loan of fungible things. The 
borrower (mutuario) is obliged to restore to the lender 
(mutuant e) that which he received from him in things of 
the same kind, quality and quantity. 

Art. 1257. This loan transfers the ownership (dominio) 
of the thing loaned to the borrower, at whose account are 
all the risks of it after the tradition. 

Art. 1258. In the mutuum of gold and silver moneys it 
may be agreed that the payment shall be effected in moneys 
of same kinds and quantities, whatever may have been sub- 
sequently the fluctuation of their values. 

Art. 1259. The muutum made to a minor person, with- 
out the previous authorization of the person under whose 



256 CIVIL CODE OP BRAZIL. 

care he is, cannot be recovered either from the borrower, or 
from his sureties or sponsors (abonadores) (Art. 1502). 

Art. 1260. The disposition of the preceding Article 
ceases : 

I. If the person whose authorization the borrower 
needed in order to contract the loan, afterwards ratifies it. 

II. If the minor, such person being absent, was obliged 
to contract the loan for his habitual support {aliment os). 

III. If the minor has property of the class indicated in 
Articles 391, no. II. But, in such case, the creditor's execu- 
tion cannot exceed the extent of such property {ndo Ihes 
poderd ultrapassar as forgas). 

Art. 1261. The lender may require a guaranty for resti- 
tution, if before maturity the borrower should suffer a 
notorious change of fortune. 

Art. 1262. It is permitted, but only by express clause, 
to fix interest to the loan of money or of other fungible 
things. 

Such interest may be fixed below or above the legal rate 
(Art. 1062), with or without compounding (capitalizagdo) . 

Art. 1263. The borrower who pays interest not stip- 
ulated, cannot recover it or apply it to the principal {capi- 
tal). 

Art. 1264. If the term of the loan {mutuo) is not ex- 
pressly agreed, it shall be : 

I. Until the next harvest, if the loan is of agricultural 
products, either for consumption or for sowing. 

II. For thirty days, at least, unless proof to the con- 
trary, if it is of money. 

III. For the space of time which the lender {mutuante) 
declares, if it is for any other fungible thing. 



DEPOSIT — BAILMENTS. 257 



CHAPTER VI. 

Of Deposit (Bailments). 
Section I. Of Voluntary Deposit. 

Art. 1265. By the contract of deposit the depositary re- 
ceives a movable thing, to keep, until the depositor re- 
claims it. 

Single Paragraph. This contract is gratuitous; but the 
parties may stipulate that the depositary shall be rewarded 
igratificado) . 

Art. 1266. The depositary is obliged to use (ter) in the 
keeping and preservation of the thing deposited, the care 
and diligence which he is accustomed to use with what be- 
longs to him, as well as to restore it, with all its fruits and 
increase, when the depositor demands it of him. 

Art. 1267. If the deposit was delivered closed, glued, or 
sealed (sellado ou lacrado), it shall be maintained in this 
same condition; and, if it is broken open (devassado) , the 
depositary shall incur the presumption of fault (culpa). 

Art. 1268. Although the contract fixes the term for 
restitution, the depositary shall deliver the deposit when- 
ever (logo que) it is demanded of him, unless the object is 
judicially embargoed, or execution of which the depositary 
has notice, is pending over it, or he has reasonable cause 
{motivo) to suspect that the thing was stolen or robbed 
(Art. 1273). 

Art. 1269. In the case of the preceding Article, last part, 
the depositary, stating the ground of his suspicion, shall 
require that the object be placed in the public depository. 

Art. 1270. The depositary shall be empowered, more- 
over, to require the judicial deposit of the thing, when, for 



258 CIVIL CODE OF BRAZIL. 

a plausible motive, lie cannot keep it, and the depositor 
does not wish to receive it from him. 

Art. 1271. The depositary who through vis major has 
lost the thing deposited and received another in its place, 
is obliged to deliver the latter to the depositor, and to assign 
to him the actions which in the case he may have against 
the third person responsible for the restitution of the first 
thing. 

Art. 1272. The heir of the depositary, who in good faith 
sold the thing deposited, is obliged to assist the depositor in 
its recovery, and to restore to the buyer the price received. 

Art. 1273. Except in the cases provided in Arts. 1268 
and 1269, the depositary cannot refuse {furtar-se a) the 
restitution of the deposit, by alleging that the thing does 
not belong to the depositor, or claiming a set-off {compen- 
sagdo), unless he bases his refusal (se fundar) on another 
deposit (Art. 1287). 

Art. 1274. If there are two or more depositors, and the 
thing is divisible, the depositary shall deliver to each one 
only his respective part, unless there is solidarity between 
them. 

Art. 1275. Under penalty of responding for losses and 
damages, the depositary cannot, without express permit of 
the depositor, make use (servir-se de) of the thing de- 
posited. 

Art. 1276. If the depositary becomes incapable, the per- 
son who assumes the administration of his property shall 
proceed (diligenciard) immediately to restore the thing de- 
posited, and, if the depositor does not wish or is not able to 
receive it, shall place it in the public depository; or shall 
procure the appointment of another depositary. 

Art. 1277. The depositary does not respond for acci- 



NECESSARY DEPOSITS. 269 

dents {casos fortuitos) or vis tnajor; but, in order to avail 
himself of the excuse, he must prove them. 

Art. 1278. The depositor is obliged to pay to the deposi- 
tary the expenses incurred by the thing and the damages 
{perjuizos) which may arise from the deiwsit. 

Art. 1279. The depositary may retain the thing until 
he is paid the liquid value of the expenses or of the dam- 
ages to which the preceding Article refers, proving imme- 
diately such damages or such expenses. 

Single Paragraph. If such expenses or damages are not 
sufficiently proven, or are unliquidated, the depositary may 
require a sufficient bond from the depositor, or, in default 
of it, the removal of the thing to the public depository, 
until they are liquidated. 

Art. 1280. The deposit of fungible things, in which the 
depositary obligates himself to restore objects of the same 
kind, quality and quantity, is governed by the provisions 
in regard to mutuum (Arts. 1256 to 1264). 

Art. 1281. The voluntary deposit shall be proven by 
writing. 

Section II. Of Necessary Deposit. 
Art. 1282. A necessary deposit is : 

I. That which is made in the discharge of a legal obliga- 
tion (Art. 1283). 

II. That which is effected on the occasion of some 
calamity, such as fire, flood, shipwreck, or sacking (saque). 

Art. 1283. The deposit mentioned in the preceding Ar- 
ticle, no. I, is governed by the provisions of law applicable 
thereto, and, where that is silent or deficient, by those 
applicable to voluntary deposits (Arts. 1265 to 1281). 

Single Paragraph. Those provisions apply, moreover, 



260 CIVIL CODE OP BRAZIL. 

to the deposits indicated in Art. 1282, no. II ; the latter may 
be shown by any means of proof. 

Art. 1284. Similar to the latter kind of deposits are 
those of the baggage of travelers, guests or customers in 
hotels where they are stopping, inns or boarding-houses 
{casas de pensao). 

Single Paragraph. The hoteHjeepers or inn-keepers 
shall respond for such baggage as depositaries, as well as 
for thefts and robberies perpetrated by the persons em- 
ployed in or admitted into their houses. 

Art. 1285. The responsibility of hotel-keepers or inn- 
keepers, in the cases of the preceding Article, ceases : 

I. If they prove that the acts prejudicial to the guests, 
travelers or customers could not have been avoided. 

II. If vis major occurs, as in the cases of house-breaking 
(escalada), invasion of the house, robbery by armed force 
(a mdo armada), or similar violences. 

Art. 1286. In the case (hypothese) of Art. 1284, the 
remuneration for the deposit is included in the price of 
entertainment (hospedagem) . 

Art. 1287. Whether the deposit is voluntary or neces- 
sary, the depositary who does not make restitution when 
demanded shall be compelled to make it by means of im- 
prisonment {prisao) not exceeding one year, and to make 
good (rearcir) the damages (Art. 1273). 

CHAPTER VII. 

Op Mandate (Powers op Attorney). 

Section I. General Dispositions. 

Art. 1288. Mandate is effecttid (opera-se) when some one 
receives from another powers to perform (practicar) acts 
or administer interests in his name. 



MANDATE — POWERS OF ATTORNEY. 261 

The instrument of the mandate is the power of attorney 
(procuraQdo) . 

Art. 1289. All persons of lawful age (maiores) or eman- 
cipated, in the enjoyment of civil rights, are capable (aptas) 
to give powers of attorney by means of a private instrument 
in their own handwriting {do propria punho). 

§ 1. The private instrument must contain the designa- 
tion of the State, of the city or civil district {circumscrip-. 
gdo) in which it is made (passado), the date, the name of 
the maker (outorgante) , the designation {individiMlizagdo) 
of the person to whom it is made (de quern seja o outor- 
gado), as well as the purpose {objectivo) of the grant 
{outorga), the nature, designation and extent of the powers 
conferred. 

§ 2. If two or more makers join in the same instrument, 
it shall be written by one and signed by all. 

§ 3. For an act (ado) which does not require a public 
instrument, the mandate, although granted by public instru- 
ment, may be substituted (suhstabelecer-se) by means of a 
private instrument. 

§ 4. The acknowledgment (reconhecimento) of the 
handwriting (lettra) and signature (firma) of the private 
instrument is an essential condition to its validity in rela- 
tion to third persons. 

Art. 1290. The mandate may be express or tacit, verbal 
or written. 

Single Paragraph. It is presumed gratuitous, when no 
compensation is stipulated, unless the object of the mandate 
is such a matter as the mandatary treats as a business {por 
officio) or lucrative profession. 

Art. 1291. Por acts which require a public or private 
instrument, the verbal mandate is not admitted. 



262 CIVIL CODE OP BRAZIL. 

Art. 1292. The acceptance of the mandate may be tacit, 
and results from commencing its execution. 

Art. 1293. The mandate is presumed accepted between 
absent persons, when the business for which it was given is 
of the profession of the mandatary, relates to his official 
character (qualidade), or was offered through {mediant e) 
publicity, and the mandatary does not immediately make 
known his refusal. 

Art. 1294. The mandate may be special for one or more 
determinate matters (negocios), or general for all those of 
the grantor (mandante) . 

Art. 1295. The mandate in general terms confers only 
powers of administration. 

§ 1. In order to alienate, mortgage, compromise {trans- 
sigir), or practice any other acts whatever which are be- 
yond {exorhitem) those of ordinary administration, the 
power of attorney {procuraQao) requires {depende de) spe- 
cial and express powers. 

§ 2. The power to compromise {iransigir) (Arts. 1025 to 
1036), does not confer that to sign an arbitration {com- 
promisso) (Arts. 1037 to 1048). 

Art. 1296. The grantor {mandante) may ratify or im- 
pugn the acts practiced in his name without sufficient 
powers. 

Single Paragraph. The ratification must be express or 
result from an unequivocal act ; and it will retroact to the 
date of the act. 

Art. 1297. The mandatary who exceeds the powers of 
the mandate, or proceeds contrary to them, shall be reputed 
a mere volunteer agent {gestor de negocios), so long as the 
grantor does not ratify his acts. 

Art. 1298. A minor over 16 but under 21 years of age. 



MANDATE — POWERS OP ATTORNEY. 263 

not emancipated (Art. 9, no. I), may be a mandatary, but 
the principal has no action against him except in con- 
formity with the general rules applicable to obligations 
contracted by minors. 

Art. 1299. The married woman cannot accept a man- 
date without the authorization of her husband. 

Section II. Of the Obligations of the Mandatary. 

Art. 1300. The mandatary is obliged to apply all his 
habitual diligence in the execution of the mandate, and to 
indemnify any damage caused by his fault or by that of 
anyone to whom he substitutes {a quern substaielecer) , with- 
out authorization, powers which he should exercise per- 
sonally. 

§ 1. If, notwithstanding the prohibition of the principal, 
the mandatary permits himself to be substituted in the exe- 
cution of the mandate, he shall respond to his principal 
(constituinte) for the damages accruing under the manage- 
ment (gerencia) of the substitute, although arising from 
accident (caso fortuito), unless he proves that the accident 
would have hapjiened, although there had been no substitu- 
tion (suhstahlecimento) . 

§ 2. If there are powers of substitution, the mandatary 
shall only be chargeable for the damages caused by the sub- 
stitute, if he is notoriously incapable, or insolvent. 

Art. 1301. The mandatary is obliged to give accounts 
of his management (gerencia) to the principal, and to 
transfer to him the advantages arising from the mandate, 
by whatever title it may be. 

Art. 1302. The mandatary cannot compensate (set-off) 
the damages which he may cause with the profits which, on 
the other hand, he may have gained for his principal. 

Art. 1303. For the sums which he should deliver to 



264 CIVIL CODE OF BRAZIL. 

the principal, or received for expenses, but employed to his 
own profit, the mandatary shall pay interest, from the time 
of his abuse (em que ahusou). 

Art. 1304. If there are two or more mandataries ap- 
pointed in the same instrument, it is understood that they 
are successive, if they are not expressly declared joint, or 
solidary, or not specifically designated for different acts. 

Art. 1305. The mandatary is obliged to exhibit the in- 
strument of mandate to the persons with whom he deals in 
the name of the principal, under penalty of responding 
to them for any act which exceeds his powers. 

Art. 1306. The third person, who, after knowing the 
powers of the mandatary, makes a contract with him exceed- 
ing (exorbitante) the mandate, neither has an action 
against the mandatary, unless the latter promised him the 
ratification of the principal, or made himself personally 
responsible for the contract, nor against the principal, un- 
less the latter has ratified the excess of the attorney-in-fact 
(procurador) . 

Art. 1307. If the mandatary acts (obrar) in his own 
name, the principal shall have no action against those who 
contracted with him, nor the latter against the principal. 

In such case, the mandatary shall be directly obligated, 
as if the business were his own, to the person with whom he 
contracted. 

Art. 1308. Although knowing of the death, interdiction 
or change of status of the principal, the mandatary must 
conclude the business already commenced, if there is danger 
in delay. 

Section III. Of the Obligations of the Principal. 

Art. 1309. The principal is obliged to satisfy all the 
obligations contracted by the mandatary, in conformity 



MANDATE — POWERS OP ATTOBNET. 265 

with the mandate conferred, and to advance the amount 
of the expenses necessary to its execution, when the man- 
datary requests it of him. 

Art. 1310. The principal is obliged to pay the man- 
datary the remuneration agreed and the expenses of the 
execution of the mandate, although the business did not pro- 
duce the expected result, unless the mandatary is at fault. 

Art. 1311. The sums advanced by the mandatary for 
the execution of the contract, bear interest from the date 
of the disbursement. 

Art. 1312. The principal is equally obliged to reim- 
burse the mandatary for the losses which he may suffer by 
the execution of the mandate, provided that they do not 
result from his own fault or excess of powers. 

Art. 1313. Although the mandatary may act contrary 
to the instructions of the principal, if he did not exceed the 
limits of the mandate, the principal shall be obligated to- 
wards those with whom his attorney-in-fact contracted ; but 
he shall have an action against the latter for the losses and 
damages resulting from the non-observance of the instruc- 
tions. 

Art. 1314. If the mandate was granted by two or more 
persons, and for a common business, each one shall be 
solidarily responsible to the mandatary for all the under- 
takings (compromissos) and effects of the mandate, saving 
a regressive right, for the amounts which he may pay, 
against the other principals. 

Art. 1315. The mandatary has the right of retention 
upon the object of the mandate, until he is reimbursed for 
what he expended in the discharge of his commission. 



266 CIVIL CODE OP BRAZIL. 

Section IV. Of the Extinction of .the Mandate. 
Art. 1316. The mandate ceases : 

I. By revocation or renouncement. 

II. By the death or interdiction of one of the parties. 

III. By the change of status which incapacitates (in- 
habilite) the principal for conferring the powers, or the 
mandatary for exercising them. 

IV. By the termination of the term (prazo), or by the 
conclusion of the business. 

Art. 1317. The mandate is irrevocable : 

I. When it has been agreed that the principal cannot 
revoke it, or the procuration given is in his own cause {ou 
for em causa propria a procuragao dada) . 

II. In cases, in general, in which it is a condition of a 
bilateral contract, or the means of performing an obliga- 
tion contracted, as in bills of exchange {lettras) and orders, 
the mandate to pay them. 

III. When conferred upon a partner (socio), as admin- 
istrator or liquidator of the society, by disposition of the 
social contract, unless it is otherwise (diversamente) dis- 
posed in the by-laws (estatutos), or in a special text of law. 

Art. 1318. The revocation of the mandate, if notified 
only to the mandatary, cannot be pleaded against third per- 
sons, who, in ignorance of it, treat with him in good faith ; 
but the actions are saved to which the principal may be en- 
titled in the case, against the attorney-in-fact (procurador) . 

Art. 1319. As soon as the appointment of another for 
the same business, is communicated to the mandatary, the 
previous mandate shall be considered as revoked. 

Art. 1320. The renouncement of the mandate shall be 
communicated to the principal, who, if he is prejudiced by 
its inopportuneness, or by the want of time, in order to pro- 



JUDICUL MANDATES. 267 

vide for the substitution of the attorney-in-fact, shall be 
indemnified by the mandatary, unless the latter proves 
that he could not continue in the mandate without con- 
siderable prejudice. 

Art. 1321. Acts agreed upon with them in the name of 
the principal by the mandatary, are valid with respect to 
third parties contracting in good faith, where the man- 
datary did not know of the death of the principal, or of the 
extinction, for any other cause, of the mandate (Art. 1S16). 

Art. 1322. If the mandatary should decease, pending the 
business committed to him, the heirs, having knowledge of 
the mandate, shall advise the principal, and shall perform 
such acts (providenciarao) in his behalf as the circum- 
stances may require. 

Art. 1323. The heirs, in the case of the preceding Ar- 
ticle, must limit themselves to conservatory measures, or 
continue the pending matters which cannot be delayed with- 
out danger, regulating their services within this limit by the 
same rules (normas) to which those of the mandatary are 
subject. 

Section V. Of the Judicial Mandate. 

Art. 1324. The judicial mandate may be conferred by 
public or private instrument, duly authenticated, upon a 
person who can practice in court (procurar em jidzo). 

Art. 1325. All who are legally habilitated may be pro- 
curators in court, who are not : 

I. Minors under twenty-one years, not emancipated or 
not declared of age (maiores). 

II. Judges in exercise. 

III. Clerks (escrivdes) or other judicial functionaries, 
in suits pending in the courts (juizos) where they serve, 
unless they are conducting their own causes. 



268 CIVIL CODE OF BRAZIL. 

IV. Those inhibited by sentence from practicing in 
court, or from exercising a public oflSce. 

V. Ascendants, deseendanfcg, or brothers of the judge of 
the cause. 

VI. Ascendants or descendants of the adverse party, ex- 
cept in their own causes. 

Art. 1326. A mandate for the bar {foro) in general, 
does not confer powers for acts which require special pow- 
ers. 

Art. 1327. Where two or more attorneys {procwradores) 
are appointed for the same cause and by the same person, 
they are considered as appointed the one in default of the 
other, and in the order in which they are named, if they 
are not joint (solidarios). But the joint appointment may 
contain a clause that one shall do nothing without the 
others. 

Art. 1328. The substitution, without reservation of pow- 
ers, not being nod;ified to the principal, does not exempt the 
procurator from responding for the obligations of the man- 
date. 

Art. 1329. Under penalty of responding for the result- 
ing damage, the lawyer, or procurator, who accepts the em- 
ployment {prociiratura) , cannot excuse himself without 
just cause, and if he has such cause, he shall advise the 
principal in time, so that he may appoint a successor to 
him. 

Art. 1330. The obligations of the lawyer and of the 
procurator shall be determined, not only by the terms of 
the procuration, but, and principally, by the contract, writ- 
ten or verbal, by which his services have been engaged {a- 
justado) . 



UNAUTHORIZED AGENCY QBSTAO. 269 

CHAPTER VIII. 

Op the Unauthorized Conduct op Business (Gestao). 

Art. 1331. One who, without authorization of the inter- 
ested party, intervenes in the conduct (gestao) of the busi- 
ness of another, shall conduct it according to the interest 
and presumable will of its owner, being responsible to the 
latter and to persons with whom he deals. 

Art. 1332. If the gestion is initiated against the mani- 
fest or presumable will of the interested party, the actor 
igestor) shall respond even for accidents, if he does not 
prove that they would have happened although he had not 
intervened {se houvesse abstido). 

Art. 1333. In the case of the preceding Article, if the 
damages caused by the gestion exceed the benefits, the 
owner (dono) of the business may require the gestor to 
restore things to their previous condition, or to indemnify 
him for the difference. 

Art. 1334. As soon as possible (ser possa), the gestor 
shall advise the owner of the business of the gestion which 
he has assumed, and shall await his reply, if no danger may 
result from the delay. 

Art. 1335. So long as the owner does not act (providen- 
ciar), the gestor shall attend {velara) to the business, and 
bring it to an end ; and, if the owner should die during the 
gestion, the gestor shall await the instructions of the heirs, 
but without neglecting, in the meanwhile, such steps as the 
case may require. 

Art. 1336. The gestor shall devote all his habitual dili- 
gence to the administration of the business, reimbursing the 
owner for all damage resulting from any fault {culpa) in 
the gestion. 



270 CIVIL CODE OP BRAZIL. 

Art. 1337. If the gestor permits another to substitute 
him, he shall respond for the failures {f alias) of the substi- 
tute, although he be a proper (idonea) person, without 
prejudice to the action which he or the owner of the busi- 
ness may have against him. 

Single Paragraph. If there is more than one gestor, 
their responsibility shall be solidary. 

Art. 1338. The gestor responds for accident {caso for- 
tuito), when he engages in risky operations, although the 
owner is in the habit of doing so, or when he neglects (pre- 
terir) the interests of the latter for the sake of his own (por 
amor dos sens). 

Single Paragraph. Notwithstanding, if the owner wishes 
to avail himself of the gestion, he shall be obliged to in- 
demnify the gestor for the necessary expenses which he has 
incurred, and the damages which he may have suffered on 
account of the gestion. 

Art. 1339. If the business is usefully administered, the 
owner shall perfonn the obligations contracted in his name, 
reimbursing the gestor for the necessary or useful expenses 
which he has incurred, with legal interest from the time of 
disbursement. 

§ 1. The utility or necessity of the expense shall be de- 
termined, not by the result obtained, but according to the 
circumstances of the occasion on which they were incurred. 

§ 2. The provisions of this Article apply although the 
gestor, being in error as to the owner of the business, gives 
accounts of the gestion to another person. 

Art. 1340. The provisions of the preceding Article ap- 
ply likewise, when the gestion seeks to prevent (se proponha 
acudir a) imminent damages {prejuizos), or redounds to 
the benefit of the owner of the business, or of the thing. 



UNAUTHORIZED AGENCY — GESTAO. 271 

But the indemnization to the gestor shall never exceed the 
amount of the advantages obtained by the gestion. 

Art. 1341. When anyone, in the absence of the individ- 
ual obliged to provide support (alimentos) , furnishes it for 
him to the person to whom it is due, he may recover its 
value from the debtor, although the latter does not ratify 
the act. 

- Art. 1342. The expenses of burial, incurred by a third 
person, in conformity with local usages and the condition 
of the deceased, may be recovered from the person who 
would be obligated to provide support for the person de- 
ceased, although the latter left no property. 

Single Paragraph. The provisions of this and of the 
preceding Article cease upon it being proven that the 
gestor incurred such expenses for the simple purpose of 
doing good. 

Art. 1343. The pure and simple ratification by the 
owner of the business relates back to the day of the com- 
mencement of the gestion, and produces all the effects of a 
mandate. 

Art. 1344. If the owner of the business or of the thing 
disapproves the gestion, as contrary to his interests, the 
provisions of Arts. 1332 and 1333 shall apply, saving the 
provisions of Art. 1340. 

Art. 1345. If the affairs (negocios) of another are con- 
nected with those of the gestor, in such way that they can- 
not be conducted (gerir) separately, the gestor shall be 
taken as the partner (socio) of the person whose interests 
he conducts (agenciar) in connection with his own. 

Single Paragraph. In this case the person in whose be- 
half the gestor acted is only obligated to the extent of the 
advantages which he gained. 



272 CIVIL CODB OF BRAZIL. 

CHAPTEE IX. 
Of Edition. 

Art. 1346. By the contract of edition (edigao) , the editor 
who obligates himself to reproduce mechanically and to 
publish (divulgar) the scientific, literary, artistic or indus- 
trial work which the author entrusts to him, acquires the 
exclusive right to publish it and vend it (exploral-a). 

Art. 1347. By the same contract the author may obli- 
gate himself to produce (a feitura de) a literary, scientific 
or artistic work, the publication and distribution of which 
is undertaken by the editor. 

Art. 1348. If no term is fixed for the delivery of the 
work, it is understood that the author may deliver it at his 
own convenience; but the editor may fix a term, with the 
penalty of rescission of the contract. 

Art. 1349. So long as the editions in which the editor 
has a right are not exhausted, the author cannot dispose of 
the work, in whole or in part. 

Art. 1350. The author has the right to make such amend- 
ments and alterations as he pleases in the successive editions 
of his work ; but if they impose extraordinary expense upon 
the editor, he shall have the right to indemnity. 

Single Paragraph. The editor may object {oppor-se) to 
alterations which prejudice his interests, injure his reputa- 
tion, or increase his responsibility. 

Art. 1351. In the case of a new edition or reprint {tira- 
gem), if the contraoting parties cannot agree upon the man- 
ner of exercising their rights, either one of them may re- 
scind the contract, without prejudice to the previous edi- 
tion. 



AUTHORS AND PUBLISHERS. 273 

Art. 1352. When the last edition is exhausted, if the 
editor, having the right to make another, does not bring it 
but, the author may judicially require him to do so within 
a certain time, under penalty of losing that right. 

Art. 1353. If, in the contract, or at the time of the con- 
tract, the author shall not have stipulated the compensation 
for his work, it shall be determined by arbitration. 

Art. 1354. If the compensation of the author is depend- 
ent upon the success of the sale, the editor shall be obliged, 
like any other agency (commissario) to render accounts to 
him. 

Art. 1355. The editor has the right to fix the number of 
copies of any edition. H© cannot, however, against the will 
(mdu grado) of the author, so reduce the number that the 
work shall not have a sufficient circulation. 

Art. 1356. It is understood that the contract relates to 
only one edition, if the contrary does not appear expressly 
or implicitly from its context. 

Art. 1357. The editor cannot make abbreviations, addi- 
tions or modifications in the work, without permission of the 
author. 

Art. 1358. The editor has the right to fix the price of 
sale, without, however, raising it to a point which restricts 
(emharace) the circulation of the work. 

CHAPTER X. 

Op Dramatic Representation. 

Art. 1359. The author of a dramatic work cannot make 
any alteration in its substance, without the consent of the 
impressario engaged in presenting it (que a faz repre- 
sentar) . 



274 



CIVIL CODE OF BRAZIL. 



Art. 1360. If no term was fixed for the representation, 
the author may require the impressario to fix a term, under 
penalty of the rescission of the contract. 

Art. 1361. The creditors of a theatrical management 
{empreza de theatre) cannot attach {fazer penhora) the 
part of the proceeds of shows reserved for the author. 

Art. 1362. Without license of the author, the impres- 
sario cannot communicate the manuscript of the work to a 
person not connected with' the theater where it is repre- 
sented. 

CHAPTER XI. 

Op Societies. 

Section I. General Dispositions. 

Art. 1363. The contract of society (sociedade) is that 
entered into by persons who mutually obligate themselves 
to combine their efforts or resources in order to attain com- 
mon ends. 

Art. 1364. When civil societies conform to {revestirem) 
the form^ establis'hed in the commercial laws, included 
among which is the law of anonymous societies, they shall 
obey their respective precepts, in so far as the same do not 
conflict with those of this Code ; but they shall be inscribed 
in the civil register, and be subject to the civil tribunals (e 
sera civif, o seu foro). 

Art. 1365. If the society does not conform to any of the 
forms of the preceding Article, it shall be governed by the 
provisions of this Chapter. 

Art. 1366. In questions between the members, a society 
shall be proven only by writing; but strangers may prove 
it in any manner. 

Art. 1367. Societies are universal, or particular. 



SOCIETIES OR COMPANIES. 275 

Art. 1368. The society is universal, when it embraces 
(ahranja) either all present property (bens), or all future 
property, and either in its totality, or only that of its fruits 
and income (rendimentos) . 

Art. 1369. The simple agreement (a juste) of universal 
society, without further declaration, is understood as re- 
stricted to all that each one of the associates gains in the 
future. 

Art. 137Q. The particular society onHy embraces the 
property or services especially declared in the contract. 

Art. 1371. The society is also considered particular 
which is constituted especially to carry on (executar) in 
common a certain enterprise {empresa), conduct (explorar) 
a certain industry, or exercise a certain profession. 



Art. 1372. The clause is void which attributes all the 
profits (lucros) to one of the members, or withdraws the 
social share of any of them from sharing in the losses {pre- 
juizos) . 

Art. 1373. If the society is of all the property, the 
dominion and possession of the same shall become common 
independently of real tradition, saving the right of third 
persons. 

Art. 1374. Where the contract is silent, the duration 
(prazo) of the society shall be indefinite, saving to each 
member the right to withdraw upon notice or two months 
prior to the close (termo) of the social year. If, however, 
the object of the society be a business or enterprise which 
should continue (durar) for a certain lapse of time, the 
members shall maintain the society until such business or 
such enterprise is concluded {se ultimo). 



276 CIVIL CODE OF BRAZIL. 

Section II. Of the Reciprocal Bights and' Obligations of 
the Members. 

Art. 1375. The obligations of the members begin imme- 
diately with the contract, if it does not fix another time, 
and end when, the society being dissolved, the social re- 
sponsibilities are satisfied and extinguished. 

Art. 13176. The contribution {entrada vmposta a) of 
each member may consist of property, of its use and enjoy- 
ment, of the cession of rights, or, solely, of the prestation of 
services. In the silence of the contract, the contributions 
shall be presumed equal among themselves. 

Art. 1377. If the member brings into the society a deter- 
mined object of which it is evicted {que venha a ser evicto), 
he shall respond to the other members {consocios) as does 
the vendor to the purchaser. 

Art. 1378. If the contribution {entrada) consists of fun- 
gible things, they shall, saving a declaration to the con- 
trary, belong in common to the associates. 

Art. 1379. All the profits {Iticros) obtained by the mem- 
ber, in the industry which he obligated himself to exercise 
for the benefit of the society, belong to the social patrimony. 

Art. 1380. Each member shall indemnify the society for 
all damages {prejuizos) which it may suffer through his 
fault {culpa), and he cannot set-off the same {cmnpen- 
sal-os) against the profits which he may have earned for it. 

Art. 1381. If the contract does not declare the share of 
each member in the profits and losses, it shall be under- 
stood to be proportionate, with respect to the capitalist 
members, to the amount which they brought in. Wtth re- 
spect to the industrial members, the provisions of Art. 1409, 
Single Paragraph, will be observed. 



SOCIETIES OR COMPANIES. 277 

Art. 1382. The member chosen for the administration 
may recover (exigir) of the society, besides what he may 
expend on its account, the amount of the obligations con- 
tracted in good faith in the management of the social busi- 
ness and the value of the damages he may suffer therefrom 
{que Ike ella causar). 

Art. 1383. The member invested with the administra- 
tion by the express text of the contract may perform {prac- 
ticar), independently of the others, all acts, which do not 
exceed its normal limits, provided that he acts without de- 
ceit (dolo). 

§ 1. The powers which he exercises shall be irrevocable 
during the term established, saving legitimate cause super- 
vening. 

§ 2. If they were conferred, however, after the contract, 
they shall be revocable the same as a simple mandate. 

§ 3. The powers of the directors or administrators of 
societies of any Mnd shall also be revocable at any time, 
if they are not members (socios), although they were ap- 
pointed in the respective contracts or by-laws {estatutos) . 

Art. 1384. If the administration is vested in two or more 
members, without discrimination as to their functions, or 
declaring that they shall act jointly, each one may by him- 
self perform all acts pertaining to the administration. 

Art. 1385. If it be stipulated that one of the adminis- 
trators can do nothing without the others, it is understood, 
in the absence of subsequent agreement, that the concur- 
rence of all is obligatory, although absent, or unable {im- 
possibilitados) , on the occasion, to render it, except in 
urgent cases, when the omission or delay of measures may 
occasion irreparable, or grave, injury (damno). 

Art. 1386. In default of explicit stipulations with respect 
to the social management : 



278 



CIVIL CODE OP BRAZIL. 



I. It is presumed that each member has the right to ad- 
minister, and what he does is valid, even with respect to the 
members who do not consent, any one of whom, however, 
may object before the act is carried into effect. 

II. Each member may make use (servir-se) of the things 
belonging to the society, provided that it be their intended 
use {que Ihes de o sen destine), that he does not use them 
against the social interest, nor prevent the others from 
making use of them, within the limits of their rights. 

III. Each member may oblige the others to contribute 
with him to the necessary expenses of the preservation of 
the social property. 

IV. No member can, without the consent of the others, 
make any alteration in the immovables of the society, 
although it may seem to him to be advantageous. 

Art. 1387. The member who does not have the adminis- 
tration of the society, cannot obligate the social property. 

Art. 1388. A member does not need the consent of the 
others in order to associate a stranger in his social share; 
but he cannot, without their acquiescence, associate him 
with the society. 

Art. 1389. The member who has received in its entirety 
his part in an active debt of the society, shall be obliged to 
share it (conferil-a), if, because of the insolvency of the 
debtor, the society cannot collect the balance (acdbar de 
cohral-a) . 

Art. 1390. If the things, the income (rendimento) of 
which constitutes the object of the society, are not fungible, 
but consist of certain and determined objects (corpos), the 
risk which they run shall be to the account of the respective 
owners. 

§ 1. If, however, they are fungible, or if, although taken 
care of (guardadas), they deteriorate, if they are intended 



SOCIETIEe OR COMPANIES. 279 

to circulate in commerce, or if they were transferred to the 
society for a determined value evidenced by an authentic 
inventory or balance-sheet, the risks to which they are 
exposed shall be to the account of the society. 

§ 2. If the thing of determined value (importancia) , as 
indicated in the preceding paragraph, last part, should 
perish, the owner can only reclaim the value declared in the 
inventory or balance-sheet. 

Art. 1391. The members have the right to indemnity 
for the losses and damages, which they may suffer in their 
property, by reason (com motivo) of the social business. 

Art. 1392. If there has been a participation in unlaw- 
ful gains, each one of the members must make return (re- 
por) of what he has received from the delinquent member, 
if the latter is condemned to restitution. 

Art. 1393. The member who has received unlawful 
gains from another, knowing or being chargeable with 
knowledge {devendo conhecer) of their origin, incurs com- 
plicity, and is obligated jointly (soUdariamente) to make 
restitution. 

Art. 1394. All the members have the right to vote in the 
general meetings, in which, saving stipulation to the con- 
trary, resolutions shall be adopted {se delibererd) by a 
majority of votes. 

Section III. Of the Obligations of the Society and of the 
Members to Third Persons. 

Art. 1395. Obligations of the society contracted jointly 
by all the members, or by any one of them in the exercise 
of the social mandate, are debts of the society. 

Art. 1396. If the social capital (cabedal) does not cover 
the debts of the society, the associates shall respond for 



280 CIVIL CODE OP BRAZIL. 

them, in the proportion in which they have to participate 
in the social losses. 

Single Paragraph. If one of the members is insolvent, 
his part of the debt shall in the same proportion be dis- 
tributed among the others. 

Art. 1397. The debtors of the society are not discharged 
by making payment to one of the members not authorized 
to receive it. 

Art. 1398. The members are not solidarily obligated for 
the social debts, nor do the a«ts of one, not authorized, 
obligate the others, unless redounding to the profit of the 
society. 

Section IV. Of the Dissolution of the Society. 

Art. 1399. The society is dissolved : 

I. By the fulfillment {implemento) of the condition to 
which its durability was subordinated, or by the expiration 
of the time established in the contract. 

II. By the extinction of the social capital, or by its im- 
pairment {desfalque) in an amount so great that it renders 
it impossible to continue. 

III. By the attainment {consecuQao) of the social end 
or by the demonstration {veriftcagao) of the inability to 
attain it {de sua inexequibilidade) . 

IV. By the failure (fallencia), incapacity, or death of 
one of the members. 

V. By the withdrawal (renuncia) of any of them, if the 
society was for an indefinite time (Art. 110). 

VI. By the unanimous consent of the associates. 
Single Paragraph. Nos. II, IV and V do not apply to 

societies for non-economic ends. 

Art. 1400. The extension (prorogagao) of the social 



DISSOI/UTION OP SOCIETIES. 281 

term is proven only by writing, in the same conditions of 
the contract which fixed it (Arts. 1364 and 1366). 

Art. 1401. If the society is extended after the expira- 
tion of the term of the contract, it shall be understood as 
constituted de novo; if within the term, it shall be held as a 
continuation of the former {da anterior). 

Art. 1402. It is lawful to stipulate that, upon the death 
of one of the members, the society shall continue with his 
heirs, or only with the surviving members. In the second 
case, the heir of the deceased shall have the right to the 
share {partilha) which he had, when he died, but he shall 
not participate in the subsequent gains and losses, which 
are not a direct consequence of acts anterior to the death. 

ac?it.-.->v - 

Art. 1403. If the contract stipulates that the society 
shall continue with the heir of the deceased member, the 
stipulation shall be complied with, provided that it can be ; 
but, if the heir be a minor, the social bond shall be dis- 
solved, as to him, in ease that the judge so determines. 

Art. 1404. The withdrawal {renuncia) of one of the 
members only dissolves the society (Art. 1399, no. V), 
when done in good faith, in opportune time, and with two 
months' previous notice to the members. 

Art. 1405. The withdrawal is in bad faith, when the 
withdrawing member intends to appropriate to himself 
exclusively the benefits which the members intended to 
acquire in common ; and it shall be held as inopportune, if 
the things are not in their integral state, or if the society 
might be prejudiced by the dissolution at that time. 

Art. 1406. In the first case of the preceding Article, the 
other members have the right to at once exclude the mem- 
ber acting in bad faith, saving his share in the expected 
advantage. In the second, the society can continue, not- 



282 CIVIL CODE OF BRAZIL. 

withstanding the opposition of the withdrawing member, 
until the time of the first ordinary balance, or until the 
conclusion of the pending business. 

Art. 1407. The social responsibility to third persons, for 
debts it has contracted, subsists even after the dissolution 
of the society. 

If the solidary responsibility of the members to third 
persons has not been stipulated, the debt shall be distributed 
by them in parts proportional to their contributions {en- 
tradas) . 

Art. 1408. "When the society has a prefixed duration, no 
member can require its dissolution before the expiration of 
the social term, if he does not prove some of the oases of 
Article 1399, nos. I to IV. 

Art. 1409. The rules of distribution {partUha) between 
heirs (Arts. 1772, et seq.) are applicable to distribution be- 
tween the members. 

Single Paragraph. The industrial member, however, 
shall only have the right to participate in the gains of the 
society, without responsibility for its losses, unless stipu- 
lated to the contrary in the contract. If the contract does 
not determine the share of profits, it is understood that it is 
proportionate to the least of the contributions (entradas). 

CHAPTER XII. 
Op Rural Partnerships (Paroeria). 
Section I. Of Agricultural Sharing. 

Art. 1410. Agricultural tenancy on shares {parceria 
agricola) is effected, when one person grants a rustic estate 
to another, to be cultivated by the latter, the fruits being 
shared between the two, in the proportion which they 
stipulate. 



RURAL PABTNEESHIPS. 283 

Art. 1411. The tenant (parceiro) who undertakes the 
cultivation shall not respond for the charges of the estate, 
if he has not assumed them. 

Art. 1412. The risks of accident {caso fortuito), or vis 
major {forga maior), shall be borne in common by the 
proprietor and the tenant. 

Art. 1413. The tenancy on shares (parceria) does not 
pass to the heirs of the contracting parties, unless they left 
the labors of cultivation in an advanced state (adeantados) , 
in which case it shall continue, so far as necessary {quanta 
baste), in order to finish the harvest. 

Art. 1414. The rules of leasing (locagao) of rustic es- 
tates are applied to this contract, in all respects not regu- 
lated in this Section. 

Art. 1415. The lease on shares subsists, when the estate 
is alienated, the person acquiring the same (adquirente) 
being subrogated to the rights and obligaitions of the 
alienor. 

Section II. Of Stock-raising on Shares (Parceria Pe- 
cuaria). 

Art. 1416. Stock-raising on shares (parceria pecuaria) 
is effected, when animals are delivered to any one to be 
pastured, cared for and raised, in return for (mediant e) a 
portion (quota) of the gains produced. 

Art. 1417. The off-spring (crias) of the animals, and 
their products, as hides, hair, wool and milk, constitute the 
object of the sharing (partilka). 

Art. 1418. The owner (proprietario parceiro) shall sub- 
stitute other animals, in case of eviction, for the animals 
evicted. 



284 CIVIL CODE OF BRAZIL. 

Art. 1419. Saving agreement to the contrary, the owner 
shall bear the damages resulting from accident {caso for- 
tuito), or vis major (forga nudor). 

Art. 1420. The owner is entitled to the profit which may- 
be obtained from dead animals, belonging to the capital. 

Art. 1421. Saving a clause to the contrary, neither part- 
ner, without license of the other, can dispose of the cattle. 

Art. 1422. The expenses of the care and raising of the 
animals, in the absence of agreement to the contrary, shall 
be to the account of the partner who is caretaker and 
raiser. 

Art. 1423. The rules of the contract of society are ap- 
plied to this contract, in so far as it is not regulated by the 
agreement of the parties, and, in default of agreement, by 
the provisions of this Section. 



CHAPTER XIII. 

Of the Constitution of Income (Renda). 

Art. 1424. By means of an act between living persons 
{entre vivos), or by last will, and by onerous or gratituous 
title, a periodical income or prestation may be constituted, 
for a definite time, for the benefit of one's self or of another, 
by delivering a certain capital, in immovables or in money, 
to a person who obligates himself to satisfy it. 

Art. 1425. The constitution of income in favor of a per- 
son already deceased, or who, within the following thirty 
days shall die of a disease (molestia) which he was suffer- 
ing when the contract was executed, is void. 

Art. 1426. The property (bens) given in compensation 
of the income passes, from the time of tradition, into the 



CONSTITUTION OP INCOME. 285 

ownership (dominio) of the person who is obligated for the 
income. 

Art. 1427. If the person obligated for the income [ren- 
deiro, ou censuario) fails to perform the obligation stipu- 
lated, the creditor of the income may have action against 
him, to require him to pay the prestations in arrears, as 
well as to require him to give security for the future, under 
penalty of the rescission of the contract. 

Art. 1428. The creditor acquires the right to the income 
day by day, if the prestation was not to be paid in advance, 
at the beginning of each of the prefixed periods. 

Art. 1429. When the income is constituted for the bene- 
fit of two or more persons, without determination of the 
part of each one, it is understood that their rights are 
equal; and, saving a different stipulation, the survivors do 
not acquire the right to the part of those who die. 

Art. 1430. The income constituted upon gratuitous title 
may, by the act of the party instituting it (insiitutor) , be 
exempted from all pending and future executions. This 
exemption exists by force of law (de pleno direito) in favor 
of montepios and alimentary pensions. 

Art. 1431. The income charged upon an immovable con- 
stitutes a real right, in accordance with the provisions of 
Arts. 749 to 754. 

CHAPTER XIV. 

Of the Contract of Insurance (Seguro). 

Section I. General Dispositions. 

Art. 1432. The contract of insurance is that by which 
one of the parties obligates himself to the other, through 
(mediante) the payment of a premium (premio), to indem- 
nify him for the damage (prejuizo) resulting from future 
risks, specified (previstos) in the contract. 



286 CIVIL CODE OF BRAZIL. 

Art. 1433. This contract does not obligate before it is 
reduced to writing, and is considered perfected from the 
time that the insurer (segurador) remits the policy to the 
insured (segurado) or makes in hisi books the usual entry 
(lanQomento) of the operation. 

Art. 1434. The policy shall specify (consignard) the 
risks assumed, the value of the object insured, the premium 
due or paid by the insured, and any other stipulations 
which may be contained (se firmarem) in the contract. 

Art. 1435. The different species of insurance covered 
(previstas) by this Code shall be regulated by the clauses 
of the respective policies, which shall not be contrary to 
legal dispositions. 

Art. 1436. This contract shall be void, when the risk 
which it covers is related to (se fUiar a) unlawful acts of 
the insured, of the beneficiary of the insurance, or of the 
representatives and agents (prepostos) of either the one or 
of the other. 

Art. 1437. A thing cannot be insured for more than it is 
worth, or for its whole value {pelo sen todo) more than 
once. It is, however, lawful for the insured to take security 
(acautelar), by means of new insurance, against the risk of 
the failure or insolvency of the insurer (Art. 1439) . 

Art. 1438. If the value of the insurance exceeds that of 
the thing, the insurer may, even after the delivery of the 
policy, require its reduction to the real value, restoring to 
the insured the excess of the premium ; and, upon proving 
that the insured acted in bad faith, he shall have the right 
to annul the insurance, without restitution of the premium, 
or prejudice to the penal, action which may lie in the case. 

Art. 1439. Saving the provision of Art. 1437, the second 
insurance of the thing already insured for the same risk or 



INSURANCE. 287 

for its full value, may be annulled by either of the parties. 
.The second insurer who was ignorant of the first contract, 
may, without returning the premium received, refuse (re- 
cusar) the payment of the object insured, or recover what 
he paid therefor, in excess of its real value, although he 
had not objected to (reclamado) the contract before the 
loss {sinistra). 

Art. 1440. The human life and faculties are also es- 
teemed as insurable objects and may be insured, at an 
agreed valuation, against possible risks, such as involuntary 
death, inability to work, and other similar kinds. 

Single Paragraph. Death received in a duel, as well as 
premeditated suicide by a person in his right mind (ctji 
seu juizio), is considered as voluntary death. 

Art. 1441. In the ease of insurance upon the life, the 
parties are free to fix the respective value, and to take out 
more than one insurance, in the same or different value, 
without prejudice to previous insurance. 

Art. 1442. The parties are also free to fix between them- 
selves the rate of premium. However, insurance taken in a 
society or company which has a tariff (tabella) of pre- 
miums, is presumed to be proposed and accepted in accord- 
ance with it. 

Art. 1443. The insured and the insurer are obliged to 
observe the strictest good faith and veracity in the con- 
tract, both with respect to its object, and to the circum- 
stances and declarations concerning it. 

Art. 1444. If the insured does not make true and com- 
plete declarations, but omits circumstances which may in- 
fluence the acceptance of the proposal or the rate of the 
premium, he shall lose the right to the amount of the insur- 
ance, and shall pay the premium due (vencido) . 



288 CIVIL CODE OF BRAZIL. 

Art. 1445. When the insured contracts the insurance 
through a broker (mediant e procurador), the latter also 
becomes responsible to the insurer for the inaccuracies, or 
omissions (lacunas), which may influence the contract. 

Art. 1446. The insurer, who, at the time of the contract, 
knows that the risk, against which the insured seeks to be 
protected, has passed, and notwithstanding, issues the pol- 
icy (apolice), shall pay double the stipulated premium. 

Art. 1447. Policies may be issued in the name of the in- 
sured (nominativas) , to order, or to the bearer. Policies of 
life insurance cannot be to bearer. 

Single Paragraph. Nominative policies shall state the 
name of the insurer, of the insured, and of his representa- 
tive, if any, or that of the third person in whose name the 
insurance is taken. 

Art. 1448. The policy shall also declare the beginning 
and the end of the risks by year, month, day and hour. 

§ 1. In default of precise stipulation, the time will be 
counted in accordance with Art. 125. 

§ 2. "With respect to things which are intended for trans- 
portation from one point to another, the risks shall begin to 
run from the time they are received at the first place, and 
shall terminate when delivered to the consignee at the sec- 
ond. 

Section II. Of the Obligations of the Insured. 

Art. 1449. Saving agreement to the contrary, the in- 
sured shall pay the stipulated premium in the act of receiv- 
ing the policy. 

Art. 1450. The insured is presumed obliged to pay the 
legal interest on the premium in arrears, independently of 



INSURANCE. 289 

the demand (interpellagdo) of the insurer, if the policy or 
the by-laws do not prescribe a higher rate. 

Art. 1451. If the insured should fail, or be declared in- 
terdict, while in arrears of premiums, or should become in 
arrears after the interdiction, or the failure, the insurer 
shall be exempt from responsibility for the risks, if the 
estate (massa), or the representative of the interdict does 
not pay the premiums in arrears before the happening of 
the loss (antes do sinistra). 

Art. 1452. The fact that the risk in protection against 
which the insurance was taken, was not verified, does not 
exempt the insured from paying the stipulated premium; 
the special dispositions of the maritime law will be ob- 
served with respect to average (estorno). 

Art. 1453. Although the risks become increased beyond 
what is was possible to foresee in the contract, the insurer 
has not the right, for such reason, to increase the premium, 
unless there is an express clause in the contract. 

Art. 1454. So long as the contract is in force, the insured 
shall refrain from everything that may increase the risks, 
or may be contrary to the terms stipulated, under penalty 
of losing the right to the insurance. 

Art. 1455. Under the same penalty of the preceding 
Article, the insured shall communicate to the insurer every 
incident which may in any way aggravate the risk. 

Art. 1456. In the application of the penalty of Art. 
1454, the judge shall proceed with equity, considering the 
real circumstances, and not unfounded probabilities, with 
respect to the aggravation of risks. 

Art. 1457. Upon the happening of the loss (verificado o 
sinistra), the insured, as soon as he knows of it, shall com- 
municate it to the insurer. 



CIVIL CODE OP BRAZIL. 

Single Paragraph. Unjustified omission so to do re- 
lieves the insurer, if he proves that, if he had been oppor- 
tunely advised, it would have been possible for him to have 
avoided, or decreased, the consequences of the disaster 
{sitiistro). 

Section III. Of the Obligations of the Insurer. 

Art. 1458. The insurer is obliged to pay in money the 
loss (prejuizo) resulting from the risk assumed, and, accord- 
ing to circumstances, the total value of the thing insured. 

Art. 1459. It shall always be presumed that the insurer 
has not obligated himself to indemnify losses resulting from 
the inherent vice of the thing insured. 

Art. 1460. When the policy limits or particularizes the 
risks of the insurance, the insurer shall not respond for 
others. 

Art. 1461. Saving express restriction in the policy, the 
risk of the insurance shall embrace all resulting or conse- 
quent damages, such as the injuries (estragos) occasioned 
in order to avert the disaster, to lessen the damage, or save 
the thing. 

Art. 1462. When the object of the insurance is given a 
determined value, and the insurance is taken for this value, 
the insurer is obligated, in the case of total loss, to pay the 
amount of the indemnization for the agreed value, without 
losing thereby the right secured to him by Arts. 1438 and 
1439. 

Art. 1463. The right to the indemnization may be trans- 
mitted to a third person as an accessory of the property, or 
of the real right upon the thing insured. 

Single Paragraph. Such transmission operates by force 
of law {de plena direito) with respect to the thing mort- 



MUTUAL INSURANCE. 291 

gaged, or pledged, and, besides these eases, when the policy 
does not forbid it. 

Art. 1464. In the event of loss {sinistra), the insurer 
may oppose to the successor or representaftve of the insured 
all the means of defense which he would have against the 
latter. 

Art. 1465. If the insurer should fail before the risk is 
past, the insured may refuse the payment to him of the 
premiums in arrears, and take other insurance for the whole 
value. 

Section IV. Of Mutual Insurance. 

Art. 1466. Insurance may be effected {ajustar-se) by a 
certain number of persons insured (segurados) sharing 
(pondo) in common among themselves the loss, which any of 
them may suffer, from the risk run by all. 

In such case the whole number (conjuncto) of the in- 
sured constitute a juridical person, to which pertain the 
functions of an insurer. 

Art. 1467. In this form of insurance, instead of pre- 
miums, the persons insured contribute with the quotas 
necessary to cover the expenses of administration and the 
"losses suffered. In default of by-laws, it is presumed that 
the rate of the quotas shall be determined according to the 
accounts of the year. 

Art. 1468. It shall also be permitted to obligate the in- 
sured to fixed premiums, they being bound (adstrictos) , 
however, in the event that the aanount of the fixed pre- 
miums does not cover the losses sustained {riscos veri- 
ficados), to make up the difference by assessed quotas (a 
quotizarem-se pela differencia) . 

If, on the contrary, the amount of the premiums exceeds 
the losses sustained, the associates may share the excess 



292 CIVIL CODE OF BRAZIL. 

among themselves as a dividend, if they do not prefer to 
create a reserve fund. 

Art. 1469. The supplementary assessments {entradas) 
and the dividends shall be proportional to the quotas of 
each associate. 

Art. 1470. The quotas of the members shall be fixed in 
accordance with the value of the respective insurances, and 
different risks may be carried in account, the same being 
established in two or more categories. 

Section V. Of Life Insurance. 

Art. 1471. Life insurance has for its object to guarantee, 
for the annual premium which is agreed, the payment of a 
certain sum to a determined person or persons, upon the 
death of the insured; it may likewise be stipulated for the 
payment of such sum to the insured himself, or to a third 
person, if the insured survives the term of his contract. 

Single Paragraph. When the payment {liquidasdo) is 
only to be made in case of death, the premium may be 
stipulated for a limited time or for the entire life of the 
insured ; it being lawful for the contracting parties, during 
the time the contract is in force, to substitute, by common 
consent, one plan for the other, upon making settlement of 
the premiums required by the substitution. 

Art. 1472. A person may take insurance upon his own 
life, or upon that of another, upon showing, in the latter 
case, his interest in the preservation of the life which he 
insures, under penalty of the insurance not being valid if 
the motive alleged is proven to be false. 

Single Paragraph. Such proof of interest is not re- 
quired, if the third person whose life it is desired to insure, 
is the descendant, ascendant, brother or sister or spouse of 
the applicant {proponent e) . 



LIFE INSURANCE. 293 

Art. 1473. If the declared purpose of the insurance is 
not the guaranty of some obligation, it is lawful for the 
insured, at any time, to substitute his beneficiary, and if 
the policy is issued to order, to institute the beneficiary 
even by his last will. In this case, in default of declaration, 
the insurance shall be paid to the heirs of the insured, not- 
withstanding any provisions to the contrary of the by-laws 
of the company or association. 

Art. 1474. A person who is legally prohibited from re- 
ceiving the donation of the insured, cannot be instituted as 
beneficiary. 

Art. 1475. The sum stipulated as benefit is not subject 
to the obligations or debts of the insured. 

Art. 1476. It is also lawful to make the insurance in 
such way that the insured will only have a right to it if he 
arrives at a certain age or is alive at a certain time. 

CHAPTER XV. 
Op Gaming and op Betting. 

Art. 1477. Gaming or betting debts do not create any 
obligation of {nao obrigam. a) payment ; but the amount 
which has been voluntarily paid can not be recovered, un- 
less it was won by deceit (dolo), or unless the loser is a 
minor, or under interdict. 

Single Paragraph. This provision applies to any con- 
tract which covers or involves the acknowledgement, nova- 
tion, or security (fianga) of gaming debts ; but the resulting 
nullity cannot be pleaded against a third person in good 
faith. 

Art. 1478. Reimbursement cannot be enforced for any- 
thing which was loaned for gaming or betting, in the act of 
betting or gaming. 



294 CIVIL CODE OP BRAZIL. 

Art. 1479. Contracts concerning operations of stock ex- 
changes {titulos de bolsa), merchandise or securities {va- 
lores) , in which settlement is stipulated exclusively for the 
difference between the agreed price and the quotation price 
at the time the settlement is made {no vencimento do 
a juste), are simulated to gaming, and are subject, as such, 
to the provisions of the preceding Articles. 

Art. 1480. Drawings (o sorteio), for the settlement of 
disputes, or to divide things in common, shall be considered 
as a system of partition, or a mode of compromise settle- 
ment {transacQdo) , according to the ease. 

CHAPTER XVI. 

Op Surety (PiANgA). 

Section I. General Provisions. 

Art. 1481. The contract of surety (fianga) takes place, 
when one person obligates himself for another, to the lat- 
ter 's creditor, to satisfy the obligation in the event that the 
debtor does not perform it. 

Art. 1482. If the surety (fiador) has someone who guar- 
antees his solvency {Ihe abone a solvencia), the provisions 
of this Chapter, in regard to surety {fianga), shall be ap- 
plied to the guarantor {ahonador) . 

Art. 1483. The security {fianQa) shall be given in writ- 
ing, and does not admit an extensive interpretation. 

Art. 1484. The security may be stipulated even without 
the consent of the debtor. 

Art. 1485. Future debts may be the object of security; 
but the surety, in this case, shall not be sued until after the 
obligation of the principal debtor is made certain and 
liquidated {liquida). 



SURETY CONTRACTS. 295 

Art. 1486. If the security is not limited, it shall cover 
{comprehenderd) all the accessories of the principal debt, 
including judicial expenses, from the citation of the surety. 

Art. 1487. The security may be in a value less than the 
principal obligation and contracted upon less onerous con- 
ditions. 

When it exceeds the value of the debt, or is morf onerous 
than it, it will not be valid except to the limit of the 
obligation secured. 

Art. 1488. Void obligations are not susceptible of se- 
curity, unless the nullity results merely from the personal 
incapacity of the debtor. 

Single Paragraph. This exception does not embrace the 
case of Art. 1259. 

Art. 1489. When any one has to give a surety, the cred- 
itor cannot be obliged to accept him, unless he is a suitable 
{idoneo) person, domiciled in the Municipality where he is 
to give the security, and possesses property sufficient for 
the discharge of the obligation. 

Art. 1490. If the surety should become insolvent or in- 
capable, the creditor may require that he be substituted. 

Section II. Of the Effects of Surety. 

Art. 1491. The surety who is sued for the payment of 
the debt has the right to require, up to the time the suit is 
answered, that execution be first had of the property of the 
debtor. 

Single Paragraph. The surety who pleads the benefit of 
order [heneficio de ordem) to which this Article refers, 
must name property of the debtor, situated in the sa/me 
Municipality, free and unincumbered, and sufficient to sat- 
isfy the debt (Art. 1504). 



296 CIVIL CODE OP BRAZIL. 

Art. 1492. This benefit does not avail the surety : 

I. If he has expressly renounced it. 

II. If he obligated himself as principal payor, or joint 
debtor (solidario). 

III. If the debtor is insolvent, or bankrupt (fallido). 

Art. 1493. Security (fianga) jointly given for a single 
debt by more than one person, implies a joint undertaking 
{compromisso de solidaridade) between them, unless they 
expressly reserve the benefit of division. 

Single Paragraph. If this benefit is stipulated, each 
surety (fiador) responds only for the part which, in propor- 
tion, corresponds to him to pay. 

Art. 1494. Each surety may also fix (taxar), in the con- 
tract, the part of the debt for which he assumes responsi- 
bility, and, in that case, he will not be obligated for more. 

Art. 1495. The surety who pays the debt in full, is 
subrogated to the rights of the creditor; but he can only 
sue each one of the other sureties for his respective quota. 

Single Paragraph. The part of an insolvent surety shall 
be distributed among the others. 

Art. 1496. The debtor responds also to the surety for 
all the losses and damages which the latter pays, and for 
those which he may suffer by reason of the security {fianga) . 

Art. 1497. The surety is entitled to interest upon the 
reimbursement at the rate stipulated in the principal obliga- 
tion, and if no rate is agreed upon, to the legal rate of 
interest. 

Art. 1498. When the creditor, without just cause, delays 
the execution begun against the debtor, the surety, or the 
guarantor (Art. 1482), may require him to proceed. 

Art. 1499. The surety, even before having paid, may re- 
quire the debtor to satisfy the obligation, or to relieve him 



EXTINCTION OF THK SECURITY. 297 

from the security, from the time that the debt becomes 
demandable, or the period has expired within which the 
debtor obligated himself to relieve him (desoneral-o) . 

Art. 1500. The surety may release himself from the 
security (fianga) which he has signed without limit of time, 
whenever he wishes to do so {Ike convier), but he remains 
obligated, however, for all the effects of the security pre- 
vious to the friendly act, or to the sentence, which releases 
him. 

Art. 1501. The obligation of the surety passes to his 
heirs; but the responsibility of the security (fianga) is lim- 
ited to the time which has run up to the death of the surety 
(fiador), and cannot exceed the assets of the estate {ultra- 
passar as forgas da heranga). 

Section III. Of the Extinction of the Security. 

Art. 1502. The surety may plead against the creditor 
the defenses (excepgoes) which are personal to him, and 
those which go to extinguish the obligation, which pertain 
to the principal debtor, if they do not arise simply from 
personal incapacity, except in the case of Art. 1259. 

Art. 1503. The surety, although joint (solidario) with 
the principal debtor (Arts. 1492 and 1493), will be re- 
leased (desobrigado) : 

I. If, without his consent, the creditor grants delay to 
the debtor. 

II. If, by act of the creditor, subrogation to his rights 
and preferences becomes impossible. 

III. If the creditor, in payment of the debt, accepts 
amicably from the debtor an object different from that 
which the latter was obligated to give him, although he 
afterwards loses it by eviction. 



298 CIVIL CODE OF BRAZIL. 

Art. 1504. If, after making the designation as provided 
in Art. 1491, Single Paragraph, the debtor becomes insol- 
vent during the delay in execution, the surety will be dis- 
charged, upon his making proof that the property indicated 
by him was, at the time of the levy [penhora), sufficient for 
the satisfaction of the debt secured. 



TITLE VI. 
Of Obligations By Unilateral Declaration of Will. 

CHAPTER I. 

Op Titles to Beakee. 

Art. 1505. The holder of a security payable to bearer 
(o detentor de um titulo ao portador), when authorized to 
dispose of it, may demand the due performance {prestaQoo 
devida) by the signer or person by whom it is issued {emis- 
sor) . The signer or issuer, however, may discharge himself 
by paying to any holder (detentor), whether or not au- 
thorized to dispose of the security (titulo). 

Art. 1506. The obligation of the issuer subsists, although 
the security has gotten into circulation against his will. 

Art. 1507. The signer or issuer cannot interpose, against 
the bearer in good faith, any defense other than that which 
is based upon the internal or external nullity of the title, or 
upon a personal right of the issuer or signer against the 
bearer. 

Art. 1508. The signer or issuer shall not be bound to pay 
except upon the presentation (vista) of the title, unless the 
same should be declared void. 

Art. 1509. A person who is wrongfully dispossessed of 
titles to bearer, can only by judicial intervention prevent 



OFFERS OP REWARD. 299 

the payment of the amount of the principal, or of the inter- 
est, to the unlawful holder {illegitimo detentor) . 

Single Paragraph. If, after summons of the holder of 
such titles, they are not presented within three years from 
that date, the judge may declare them of no effect {cadu- 
cos), ordering the debtor to execute others in substitution 
of those demanded. 

Art. 1510. If the title, bearing the name of the creditor, 
contains (trouxer) a clause that payment may be made {de 
poder ser paga a prestagao) to the bearer, upon making 
payment to {embolsando) the latter, the debtor will validly 
discharge hmiself ; but he may require him to prove his right 
or give a bond. 

The person whose name is written in the title is presumed 
to be the owner, and can reclaim it from any one who 
wrongfully detains it. 

Art. 1511. The title, in which the signer or issuer obli- 
gates himself, without authorization of Federal law, to pay 
to the bearer a certain amount of money, is void. 

Single Paragraph. This provision does not apply to the 
obligations issued by the States or Municipalities, which 
shall continue to be governed by a special law. 

CHAPTER II. 

Of the Promise op Reward. 

Art. 1512. Any person who, by public advertisements, 
offers (se comprometter) to reward, or gratify, whoever may 
fulfill a certain condition, or perform a certain service, 
contracts an obligation to do what he has promised. 

Art. 1513. Whoever, in the terms of the preceding Ar- 
ticle, does the said service, or satisfies the said condition, 
although not induced by reason of the promise {nao pelo 
interesse da promessa), may demand the stipulated reward. 



300 CIVIL CODE OF BRAZIL. 

Art. 1514. Before the performance of the service or the 
fulfillment of the condition, the promisor may revoke the 
promise, provided that he does so with the same publicity. 

If, however, he had designated a stated time for the per- 
formance of the act {execuQao da tarefa), it shall be under- 
stood that he waives the right {renuncia o arbitrio) to with- 
draw the offer during such time. 

Art. 1515. If the act contemplated in the promise is per- 
formed by more than one individual, the one who first per- 
formed it shall have the right to the reward. 

§ 1. If the performance is simultaneous, each one shall 
be entitled to an equal share in the reward. 

§ 2. If the reward is not divisible, it shall be awarded 
by lot. 

Art. 1516. In competitions {concursos) which are opened 
by public promise of reward (recompensa) , the fixing of a 
stated time (prazo) is an essential condition of its validity 
(para valerem), as is also the observation of the provisions 
of the following paragraphs : 

§ 1. The decision of the person named in the announce- 
ments as judge, binds the interested parties. 

§ 2. In default of any person designated to judge the 
merits of the works which may be presented, it shall be 
understood that the promisor reserves to himself that 
function. 

§ 3. If the works have equal merit, the provisions of the 
preceding Article shall be observed. 

Art. 1517. The successful works (obras premiadas) , in 
competitions within the preceding Article, shall only become 
the property of the promisor, if so stipulated in a clause in 
the publication of the promise. 



CIVIL DAMAGES. 301 

TITLE VII. 
Of Obligations, for Illicit Acts. 

Art. 1518. The property of a person responsible for the 
offense or violation of the right of another, is subject to the 
reparation of the damage caused ; and if there is more than 
one author of the offense, all shall respond solidarily for the 
reparation. 

Single Paragraph. Accomplices, and the persons desig- 
nated in Art. 1521, are solidarily responsible with the 
authors. 

Art. 1519. If the owner of the thing, in the case of Art. 
160, No. II, is not to blame (culpado) for the danger, he 
shall be entitled to indemnization for the damage {prejuizo) 
which he suffers. 

Art. 1520. If the danger occurred through the fault of 
a third person, in the case of Art. 160, No. II, the author of 
the damage shall have a regressive action against the former 
to recover the amount which he has had to pay {que tiver 
resarcido) to the owner of the thing. 

Single Paragraph. The same action shall lie against the 
person in defense of whom the thing was damaged (Art. 
160, No. I). 

Art 1521. Also responsible for civil reparation, are : 

I. Parents (os paes), for their minor children who were 
under their power or in their company. 

II. Tutors or curators, for their pupils and wards, who 
were in the same conditions. 

III. The patron, master, or principal (committente) , 
for his employes, servants {servigaes) and agents {pre- 
postos), in the exercise of the work entrusted to them {que 
Ihes competir), or on account of the same (Art. 1522). 



302 CIVIL CODE OP BRAZIL. 

IV. The owners of hotels, guest-houses (hospedarias) , 
houses or establishments where lodging is furnished {onde 
se albergue) for money, even for purposes of education, for 
their guests, dwellers, and scholars. 

V. Those who have gratuitously participated in the 
proceeds of a crime, up to a corresponding amount (ate a 
concorrente quantia). 

Art. 1522. The responsibility established in the preced- 
ing Article, No. Ill, embraces juridical persons, who are 
engaged in industrial enterprises {que exercerem explo- 
ragdo industrial). 

Art. 1523. "With the exception of those of Art. 1521, no. 
V, the persons enumerated in this Article and in Art. 1522, 
shall be responsible only upon proof that they contributed 
{concorreram) to the damage by fault {por culpa), or 
negligence on their part. 

Art. 1524. A person who makes good {resarcir) the 
damage caused by another, if the latter is not his descend- 
ant, may recover what he has paid, from the person for 
whom he has paid. 

Art. 1525. Civil responsibility is independent of the 
criminal responsibility, but there can be no further ques- 
tion, however, as to the existence of the fact, or as to who 
was the author of it, when these questions have been 
decided in the criminal action (no crime). 

Art. 1526. The right to demand reparation, and the 
obligation to make it (prestal-a), are transmitted with the 
inheritance, except in the cases which this Code excludes. 

Art. 1527. The owner, or keeper (detentor), of an ani- 
mal shall make good (resarcird) the damtige caused by it, 
unless he proves : 

I. That he kept and watched it with precise care. 



CIVIL DAMAGES. 303 

II. That the animal was provoked by another. 

III. That the person injured acted imprudently {qioe 
houver imprudencia do offendido). 

IV. That the fact resulted from accident (caso for- 
tuito), or vis major. 

Art. 1528. The owner of a building or structure is re- 
sponsible for the damages which result from its ruinous 
condition {da sua ruina), if this arises from lack of repairs, 
the necessity for which was manifest. 

Art. 1529. The person who inhabits a house, or a part 
of it, is responsible for the damage arising from things 
which fall from it or are thrown into an improper place 
(langadas em logar indevido). 

Art. 1530. The creditor who sues the debtor before the 
debt is due, except in the cases in which the law permits it, 
shall be obliged to wait the time remaining until the same 
becomes due, to deduct (descontar) the corresponding in- 
terest, although stipulated, and to pay the costs in double 
amount. 

Art. 1531. The person who sues for a debt already paid, 
in whole or in part, without allowance (resalvar) for the 
amounts received, or demands more than is due, shall be 
obliged to pay to the debtor, in the first case, the double 
of the amount collected, and, in the second case, the equiv- 
alent of what he demands from him, unless by reason of his 
right being prescribed, he dismisses his action {decair da 
acgao) . 

Art. 1532. The penalties of Arts. 1530 and 1531 will not 
be applied, when the plaintiff (autor) desists from his 
action before answer to the suit. 



304 CIVIL CODE OF BRAZIL. 

TITLE VIII. 
Of the Liquidation of Obligations. 

CHAPTER I. 

General Pboyisions. 

Art. 1533. An obligation certain is considered liquid 
(liquida), with respect to its existence, and determined, 
with respect to its object. 

Art. 1534. When the debtor cannot make performance 
(cvtinprir a prestagao) in kind as stipulated {na especie 
ajustada), he shall substitute for it its value in current 
money, in the place where the obligation is executed. 

Art. 1535. Before judicial execution of obligations to do, 
or not to do, and in general, of indemnity for losses and 
damages, shall proceed, the liquidation of the amount shall 
be determined in all cases where it is not fixed by law or by 
the agreement of the parties. 

Art. 1536. To liquidate the amount of a prestation not 
performed, which has official value in the place of execu- 
tion, the average of the price, or of the rate (taxa) , between 
the date when it is due and that of payment, will be taken, 
adding interest for the delay. 

§ 1. In all other cases, the liquidation shall be made by 
arbitration. 

§ 2. In unliquidated obligations, the interest for delay 
is counted from the initial citation. 



MEASUBK OP DAMAGES. 305 



CHAPTER II. 

Of the LiQuroATioN of Obligations Arising From 
Illicit Acts. 

Art. 1537. The indemnization, in the case of homicide, 
consists : 

I. Of the pajrment of the expenses of the treatment 
of the victim, his funeral, and the mourning outfit {luto) 
of his family. 

II. In the furnishing {prestas&o) of support {alimen- 
tos) to the persons to whom the deceased owed it. 

Art. 1538. In the case of wounding or other injury 
(offensa) to health, the offender shall indemnify the of- 
fended for the expenses of treatment and for lost profits 
(lucros cessantes) until the end of his recovery, besides pay- 
ing him the amount of the fine in the medium grade of the 
corresponding criminal penalty. 

§ 1. This sum shall be doubled if maiming or deformity 
results from the wounding. 

§ 2. If the injured person, maimed or deformed, is an 
unmarried woman or widow, yet capable of marriage, the 
indemnization shall consist in giving her a dowry (dotal-a), 
according to the ability of the offender, the circumstances 
of the injured person, and the gravity of the defect. 

Art. 1539. If from the injury a defect results by reason 
of which the injured person cannot exercise his trade or 
profession, or the value of his work is diminished, the in- 
demnization, besides the expenses of treatment and lost 
gains up to the time of his recovery, shall include a pen- 
sion corresponding to the amount of the work, for which 
he was incapacitated, or of the depreciation which he suf- 
fered. 



30€ CIVIL CODE OF BRAZIL. 

Art. 1540. The preceding provisions are applied even 
to the case in which the death, or injury (lesao) results 
from an act considered a justifiable crime, if it was not 
perpetrated by the offender in repelling the aggression of 
the injured person. 

Art. 1541. In the case of wrongful taking (usurpagdo) , 
or dispossessing of another, the indemnization shall con- 
sist of restoring the thing, together with the value of its 
deterioration, or, if none, in reimbursing its equivalent to 
the injured person (Art. 1543). 

Art. 1542. If the thing is in the possession of a third 
person, the latter shall be obliged to deliver it, and the 
property of the delinquent is liable for the indemnization. 

Art. 1543. For making restitution of the equivalent, 
when the thing itself does not exist (Art. 1541), it will be 
valued at its ordinary price and by its value of affection, 
provided that the latter does not exceed {avantaje) the 
former. 

Art. 1544. Besides ordinary interest, counted propor- 
tionally to the value of the damage, and from the time of 
the crime, the satisfaction comprises compound interest. 

Art. 1545. Physicians, surgeons, pharmacists, midwives, 
and dentists are obliged to satisfy damages, whenever 
death, disability for service, or wounding results from 
imprudence, negligence, or want of skill (impericia) , in 
professional acts. 

Art. 1546. The pharmacist responds solidarily for the 
errors and mistakes (enganos) of his clerk (preposto). 

Art. 1547. The indemnization for libel or slander {in- 
juria ou calumnia) shall consist in the reparation of the 
injury which thereby results to the person offended. 

Single Paragraph. If he cannot prove material damage 



MEASURE OF DAMAGES. 307 

iprejuizo), the offender shall pay him double the fine in the 
maximum grade of the respective criminal penalty (Art. 
1550). 

Art. 1548. The woman aggrieved in her honor has the 
right to require of the offender, if he cannot or will not 
repair the wrong by marriage, a dowry corresponding to 
her own condition and state : 

I. If, being a virgin and minor, she is deflowered. 

II. If, being a virtuous woman, she was violated, or 
terrified by threats. 

III. If she were seduced under promise of marriage. 

IV. If she were raped. 

Art. 1549. In all other crimes of sexual violence or of 
outrage to modesty (pudor), the indemnization shall be 
judicially determined. 

Art. 1550. The indemnization for offenses to personal 
liberty shall consist in the payment of the losses and dam- 
ages suffered by the injured person, and in a sum calculated 
in the terms of the Single Paragraph of Art. 1547. 

Art. 1551. As offensive to personal liberty (Art. 1550), 
are considered: 

I. Private prison (cfflrcere). 

II. Imprisonment (prisao) through false complaint or 
denouncement, or made in bad faith. 

III. Illegal imprisonment (Art. 1552), 

Art. 1552. In the case of the preceding Article, no. Ill, 
only the authority who ordered the imprisonment is obliged 
to make good the damages. 

Art. 1553. In cases not foreseen in this Chapter, the 
indemnization shall be fixed by arbitrament. 



308 CIVIL CODE OP BRAZIL. 

TITLE IX. 
Of Creditors' Meetings (Ooncurso de Oredores). 

Of Preferences and Credit ory Liens {PrivUegios) . 

Art. 1554. Creditors meetings {concurso de credores) 
may be held whenever the debts exceed the amount of the 
property of the debtor. 

Art. 1555. The discussion between the creditors may 
relate either to the .preferences in dispute between them, or 
to the nullity, simulation, fraud, or falsity of the debts and 
contracts. 

Art. 1556. If no one has legal title to preference, the 
creditors shall have equal rights in the property of the 
common debtor. 

Art. 1557. The legal titles to preference are liens and 
real rights. 

Art. 1558. The hypothecary or lien creditors preserve 
their respective rights : 

I. Upon the price of the insurance of the thing charged 
with mortgage or lien (priviligio) , or upon the indemnity 
due if some one is responsible for the loss or damage 
(damnificagao) of the thing. 

II. Upon the value of the indemnity, if the thing 
charged with mortgage or lien is disappropriated, or sub- 
jected to a legal servitude. 

Art. 1559. In these cases, the debtor of the price of the 
insurance, or of the indemnity, discharges himself by pay- 
ing'without opposition of the mortgage or lien creditors. 

Art. 1560. The real credit has preference over the per- 
sonal of whatever kind, with the exception established in 
the Single Paragraph of Art. 759 ; the personal credit with 



INSOLVENCY PROCEEDINGS. 309 

a lien is preferred over the simple credit, and the special 
lien over the general. 

Art. 1561. The preference resulting from mortgage, 
pledge and other real rights (Art. 674), shall be determined 
in accordance with the provisions of the preceding Book. 

Art. 1562. When two or more creditors of the same 
class have special liens {especialmente privilegyidos) , and 
with equal titles, upon the same property {concorrerem aos 
mesnios hens), they shall be prorated in proportion to the 
value of the resi)€ctive credits, if the proceeds are not suffi- 
cient for the full payment of them all. 

Art. 1563. Liens, — ^with the exception of that one re- 
ferred to in the Single Paragraph of Art. 759, — relate (*e 
refer em) only: 

I. To the movable property of the debtor, not subject 
to the real right of another. 

II. To unmortgaged immovables. 

III. To the balance {soldo) of the price of property 
subject to pledge or mortgage, after payment of the re- 
spective creditors. 

IV. To the value of the insurance and of the disappro- 
priation. 

Art. 1564. From the price of the mortgaged immovable 
there shall be deducted, however, the judicial costs of the 
execution against it, as well as the expenses of its conserva- 
tion by a third person, by agreement of the debtor and 
creditor, after the constitution of the mortgage. 

Art. 1565. The special lien only includes property sub- 
ject, by express provision of law, to the payment of the 
credit which it secures {que elle favorece) ; and the general, 
all property not subject to real credit, nor to special lien. 

Art. 1566. The following have a special lien : 



310 



CIVIL CODE OF BRAZIL. 



I. The creditor for judicial costs and expenses incurred 
in the collection and liquidation, upon the thing collected 
and liquidated. 

II. The creditor for expenses of salvage, upon the thing 
salvaged. 

III. The creditor for necessary or useful benefits, upon 
the thing benefited. 

IV. The creditor for materials, money, or services in 
building, reconstruction or improvement, upon the rustic 
or urban estates, factories, offices, or any other construc- 
tions. 

V. The creditor for seeds, instruments, and services in 
cultivation, or in the harvest, upon the agricultural pro- 
duce {frutos agricolas) . 

VI. The creditor for rent-money {alugueres), for the 
amounts due (prestagoes) for the current and preceding 
year, upon the furnishings (alfaias) and utensils in rustic 
or urban estates. 

VII. The author of a work, or his legitimate representa- 
tives, upon the copies of the same existing in the estate 
{massa) of the editor, for a credit created (fimdado) 
against the latter in the contract of publication {de edigao). 

VIII. The agricultural laborer, for the debt due for his 
wages (Art. 759, Single Paragraph) , upon the product of 
the crop to which he has contributed by his labor, and with 
preference {precipvMmente a) over any other credits. 

Art. 1567. The lien established in the preceding Article, 
No. V, ceases when the fruits are reduced to another kind 
(especie), or sold after being harvested. 

Art. 1568. Where there are, at the same time, creditors 
entitled to the lien of Art. 1566, no. Ill, and to that of this 
Article, no. IV, the provisions of Art. 1562 will be applied 
to them. 



INSOLVENCY PROCEEDINGS. 311 

Art. 1569. A general lien upon the property of the 
debtor, in the following order, is enjoyed by : 

I. The credit for the funeral expenses, conducted with- 
out pomp, according to the condition of the deceased and 
the custom of the place. 

II. The credit for judicial costs, or for expenses of the 
collection and liquidation of the estate (massa). 

III. The credit for the expenses of the mourning of the 
surviving spouse and of the children of the deceased debtor, 
if the same are moderate. 

IV. The credit for the expenses of the illness of which 
the deceased died, for the six months prior to his death. 

V. The credit for the necessary costs of the maintenance 
of the deceased debtor and his family, for three months 
prior to his death. 

VI. The credit for the taxes (impostos) due to the Pub- 
lic Treasury for the current year and for the preceding 
year. 

VII. The credit for the wages of servants and other 
persons of domestic service of the debtor, in his last months 
of life. 

Art. 1570. In the remuneration of Art. 1569, no. VII, is 
included that of the teachers (mestres) who, during the 
same period, taught the minor descendants of the deceased. 

Art. 1571. The Federal Treasury has preference over 
that of the State, and the latter over the Municipal. 



312 CIVIL CODE OF BRAZIL. 



BOOK IV. 

OF THE RIGHT OF SUCCESSIONS 



TITLE I. 
Of Succession in General. 

CHAPTER I. 
General Provisions. 

Art. 1572. The succession being opened, the ownership 
(dominio) and the possession of the estate (heranga) is 
transmitted, immediately, to the legitimate and testament- 
ary heirs. 

Art. 1573. Succession is given by disposition of last 
will, or by virtue of law. 

Art. 1574. Where a person dies without a will, the es- 
tate is transmitted to his legitimate heirs. The same occurs 
with respect to the property not included in the will. 

Art. 1575. The legitimate succession also takes place if 
the will is without effect (caducar), or is adjudged void. 

Art. 1576. If there are necessary heirs, the testator can 
only dispose of half of the estate. 

Art. 1577. The capacity to succeed is of the time of the 
opening of the succession, which shall be regulated accord- 
ing to the law then in force. 

CHAPTER II. 

Of the Transmission op the Estate. 

Art. 1578. The succession is opened in the place of the 
last domicile of the deceased. 



TRANSMISSION OP ESTATES. 313 

Art. 1579. Where the marriage was celebrated under 
the regimen of community of property, the surviving spouse 
has the right to continue, until the partition, in possession 
of the estate, with the duty of head of the household (casal) . 

§ 1. If, however, the surviving spouse is a woman, it 
will be necessary (mister), for this purpose, that she should 
have been living with her husband, at the time of his death. 

§ 2. If there is no surviving spouse, the appointment of 
the maker of the inventory (inventariante) will be made 
by the co-heir who is in the corporal possession and admin- 
istration of the property. Among co-heirs, the preference 
will be regulated by their fitness (idoneidade) . 

§ 3. In default of spouse and of heirs, the executor {tes- 
tamenteiro) will make the inventory. 

Art. 1580. Where two or more persons are called simul- 
taneously to an inheritance (heranga), their right, with re- 
spect to the possession and ownership, shall be indivisible 
until the partition is completed (se vltimar). 

Single Paragraph. Either of the co-heirs may recover 
the universality of the estate from a third person who is 
wrongfully in possession of it, and the latter cannot oppose 
against him, as a defense, his partial right to the property 
of the succession. 

CHAPTER III. 

Op the Acceptance and Renunciation op the 
Inheritance. 

Art. 1581. The acceptance of the inheritance may be 
express or tacit; the renunciation, however, must be evi- 
denced {constar) by notarial act (escriptura publica) or by 
judicial record (termo). 

§ 1. The acceptance is express when it is made by writ- 



314 CIVIL CODE. OP BRAZIL. 

tea. declaration; tacit, when it results from acts compatible 
only with the character of heirship. 

§ 2. Acceptance of the inheritance is not expressed by 
officious acts, as the funeral of the deceased, or by those 
merely conservatory, or those of administration and adm- 
ienm safe-keeping {guarda). 

Art. 1582. Nor likewise does the gratuitous assignment 
(cessao), pure and simple, of the estate to the other co- 
heirs, imply acceptance. 

Art. 1583. The inheritance cannot be accepted or re- 
nounced in part, upon condition, or on time (a termo) ; but 
the heir, to whom legacies are left by will (se testwram), 
may accept them, renouncing the inheritance, or accept it, 
repudiating them. 

Art. 1584. The person interested in having the heir 
declare whether he accepts or not the inheritance, may, 
twenty days after the succession is opened, require of the 
judge a reasonable time, not greater than thirty days, with- 
in which the heir must announce his choice, under penalty 
of being held to have accepted the inheritance. 

Art. 1585. If the heir dies before he has declared 
whether he accepts the inheritance, the right of acceptance 
passes to his heirs, unless in case of institution limited {ad- 
stricta) by a suspensive condition not yet fulfilled {veri- 
ficada). 

Art. 1586. When the heir prejudices his creditors by 
renouncing the inheritance, they may accept it in the name 
of the renouncing heir, with the authorization of the judge. 

In this case, and after the payment of the debts of the 
renouncing heir, the remainder shall be returned to the 
other heirs. 

Art. 1587. The heir is not liable {nao re&ponde) for 



ACCEPTANCE OR REJECTION. 315 

charges greater than the value (fovgas) of the inheritance ; 
he must, however, make proof of the excess, unless there is 
an inventory, which excuses it, showing the value of the 
property inherited. 

Art. 1588. No one can succeed, representing the re- 
nouncing heir. If, however, he is the only legitimate heir 
of his class, or if all the others of the same class renounce 
the inheritance, their children may come into the succession 
in their own right, and per capita (e por cahega). 

Art. 1589. In cases of legitimate succession, the part 
of the renouncing heir accretes to that of the others of the 
same class, and if he is the only one of the class, it devolves 
to those of the subsequent class. 

Art. 1590. The renunciation may be retracted, when it 
was made through violence, error or deceit (dolo), after 
hearing the interested parties. The acceptance may be re- 
tracted, if prejudice does not result to the creditors, they 
having the right, in the contrary case, to avail themseilves 
of the provisions of Art. 1586. 

CHAPTER IV. 

Of Vacant Estates (HERANgA Jacente). 

Art. 1591. If there is no will, the estate is vacant (ja- 
cente), and shall remain under the keeping, conservation 
and administration of a curator : 

I. If the deceased left no spouse, nor descendant or 
ascendant heir, nor collateral capable of succession (suc- 
cessivel), notoriously known. 

II. If the heirs, descendants or ascendants, renounce 
the inheritance, and there is no spouse, or collateral capable 
of succession, notoriously known. 



'316 CIVIL CODE OP BEAZIL. 

Art. 1592. If there is a will, the provisions of the pre- 
ceding Article will be observed : 

I. If the deceased left no spouse, nor descendant or 
ascendant heirs. 

II. If the heir named does not exist, or does not accept 
the inheritance. 

III. If, in any of the cases foreseen in the two preceding 
numbers, there is no collateral capaible of succession, no- 
toriously known. 

IV. If, in the event of any of the eases of the three 
preceding mimbers, there is no executor appointed, or the 
one named does not exist, or does not accept the office {tes- 
tamentaria) . 

Art. 1593. The property of the jacent estate shall be 
declared vacant if, after all the legal proceedings have been 
observed, no heirs have appeared. 

Single Paragraph. This declaration shall not be made 
until one year after the inventory has been concluded. 

Art. 1594. The declaration of the vacancy of the in- 
heritance shall not prejudice the heirs who legally prove 
their rights {se habilitarem) ; but, at the expiration of 
thirty years from the opening' of the succession, the prop- 
erty collected shaU pass to the ownership (dominio) of the 
State, or of the Federal District, if the former owner {de 
cujus) had been domiciled in the respective jurisdictions 
(circumscripgoes) , or shall be incorporated into the owner- 
ship of the Union, if he had been domiciled in territory not 
yet constituted into a State. 

CHAPTER V. 

Op Those Who Cannot Succeed. 

Art. 1595. The heirs or legatees are excluded from the 
inheritance (Arts. 1708, no. IV and 1741 to 1745) : 



EXCLUSION FROM SUCCESSION. 317 

I. "Who have been authors or accomplices in thei crime 
of voluntary homicide, or attempt at it, against the person 
whose succession is concerned. 

II. "Who has ealumniously accused him in a lawsuit, or 
engaged in a crime against his honor. 

III. Who by violence or fraud prevented (a inhibiram) 
him from freely disposing of his property by will or codicil, 
or prevented him {Ihe obstaram) from executing the acts 
of last will. 

Art. 1596. The exclusion of the heir, or legatee, in any 
of these cases of indignity, shall be declared by sentence, in 
an ordinary action, brought by any one who has an interest 
in the succession. 

Art. 1597. The individual guilty {incurso em) of acts 
which entail (determinem) exclusion from the inheritance 
(Art. 1595), shall nevertheless be admitted to it, if the per- 
son offended, whose heir he is, so declared {resolveu) by 
authentic act, or by will. 

Art. 1598. The person excluded from the inheritance is 
obliged to restore the fruits and income (rendimentos) of 
the property of the estate which he may have received. 

Art. 1599. The effects of exclusion are personal. The 
descendants of the excluded heir succeed, as if he were 
dead (Art. 1602). 

Art. 1600. Alienations of hereditary property, and acts 
of administration legally performed by the excluded heir, 
before the sentence of exclusion, are valid ; but the co-heirs, 
if prejudiced, have the right to recover losses and damages 
from him. 

Art. 1601. The excluded heir has the right to demand 
indemnization for any expenses incurred in the preserva- 
tion of the hereditary property, and to recover the credits 
he may have {que Ihe assist am) against the estate. 



318 CIVIL CODE OP BRAZIL. 

Art. 1602. The person excluded from the succession 
shall not be entitled to the usufruct and to the administra- 
tion of the property which pertains {couherem) to his chil- 
dren in the estate (Art. 1599), nor to the eventual succes- 
sion to such property. 

TITLE II. 
Of Legitimate Succession. 

CHAPTER I. 

Of the Order op Succession (VocaqIo Hereditaria). 

Art. 1603. Legitimate succession is granted (defere-se) 
in the following order : 

I. To the descendants. 

II. To the ascendants. 

III. To the surviving spouse. 

IV. To the collaterals. 

V. To the States, to the Federal District, or to the 
Union. 

Art. 1604. In the descendant line, the children succeed 
per capita {por cdbesa), and the other descendants per 
capita or per stirpes {por estirpe), according as they are, 
or are not, of the same degree (grdo). 

Art. 1605. For the effects of succession, legitimated, 
acknowledged, natural, and adoptive children are equal (se 
equiparam) to legitimate children. 

§ 1. If there is a legitimate, or legitimated child, a 
natural child acknowledged in the record (constancia) of 
marriage (Art. 368), shall only be entitled to one-half the 
share in the estate which the former is entitled to. 

§ 2. An adopted child shall be entitled to only one-half 
the share of the inheritance to which each of the legitimate 



INTESTATE SUCCESSION, 319 

children bom after (suvervinientes a) the adoption, are en- 
titled. 

Art. 1606. There being no heirs of the class of descend- 
ants, the ascendants are called to the succession. 

Art. 1607. In the class of ascendants, the nearest degree 
excludes the more remote, without distinction of degrees. 

Art. 1608. There being equality in degree and diversity 
in line, the inheritance shall be divided between the two 
lines by halves {meio pelo meio). 

Art. 1609. If an adopted child dies without descendants, 
and is survived by his parents and the adopting parent 
(adoptante), the estate goes entirely to the former. 

Single Paragraph. If there are no parents, although 
there are other ascendants, the estate goes to the adopting 
parent. 

Art. 1610. When the illegitimate descendant has the 
right to the succession of the ascendant, the illegitimate 
ascendant shall have the right to the succession of the 
descendant. 

Art. 1611. In default of descendants and ascendants, 
the succession shall pass (sera deferida) to the surviving 
spouse, if at the time of the death of the other they were 
not divorced (desquitados) . 

Art. 1612. If there is no surviving spouse, or he is 
under the disability of Art. 1611, the collaterals up to the 
sixth degree shall be called to succeed. 

Art. 1613. In the class of collaterals, the nearer exclude 
the more remote, saving the right of representation granted 
to the children of brothers and sisters (irmaos). 

Art. 1614. Where bilateral brothers or sisters and uni- 
lateral brothers or sisters are entitled {concorrendo a) to 



320 CIVIL CODE OP BRAZIL. 

the inheritance, each one of the latter shall inherit the half 
of what each one of the former inherits. 

Art. 1615. If with an uncle or uncles or aunts there con- 
cur children of a unilateral or bilateral brother or sister, 
they shall have, by right of representation, the part which 
would go {cdberia) to the father or to the mother, if living. 

Art. 1616. Where there is no brother german entitled to 
the inheritance, the unilaterals shall inherit in equal pai-ts 
among themselves. 

Art. 1617. In default of brothers and sisters, their chil- 
dren shall inherit: 

§ 1. If only children of deceased brothers or sisters are 
entitled to the estate, they shall inherit per capita. 

§ 2. If there are children of bilateral brothers or sisters 
and children of unilateral brothers or sisters, each of the 
latter shall inherit half of what each of the former in- 
herits. 

§ 3. If all are children of brothers german, or all are 
children of unilateral brothers, all will inherit equally {por 
egual) . 

Art. 1618. There is no right of inheritance between an 
adopted child and the relatives (parentes) of the adopting 
parent {do adoptante) . 

Art 1619. There being no surviving spouse, nor any 
relative entitled to the succession {parente successivel) , or 
if they have renounced the inheritance, it shall devolve 
upon the State or the Federal District, if the deceased (de 
cujus) was domiciled in the respective jurisdictions {cim- 
cumscripgoes) , or upon the Union, if he was domiciled in 
territory not yet constituted into a State. 



TESTAMENTARY SUCCESSION. 321 

CHAPTER II. 

Of the Right op Representation. 

Art. 1620. The right of representation is given, when 
the law calls certain relatives (parentes) of the deceased 
to succeed to all the rights, to which he would succeed, if 
alive. 

Art. 1621. The right of representation is given in the 
right line descendant, but never in the ascendant. 

Art. 1622. In the collateral (transversal) line, the right 
of representation is only given in favor of children of 
brothers and sisters of the deceased, when they concur with 
a brother of the latter. 

Art. 1623. The representatives can only inherit, as such, 
what the person whom they represent (o representado) 
would inherit, if living. 

Art. 1624. The share of the person represented shall be 
divided equally among the representatives. 

Art. 1625. The heir who renounces the inheritance of a 
person shall represent him in the succession of another. 

TITLE III. 
Of Testamentary Succession. 

CHAPTER I. 

Of the Will in General. 

Art. 1626. A testament is the revocable act by which 
anyone, in conformity with the law, disposes, in whole or in 
part, of his patrimony, to take effect (para depois) after 
his death. 



322 CIVIL CODE OP BRAZIL. 

CHAPTER II. 
Op the Capacity to Make a Will. 

Art. 1627. Incapable of makiiig a will (testar) are: 

I. Minors under sixteen years. 

II. Insane persons (loucos) of all kinds. 

III. Those who, at the time of making their will {ao 
testar) , are not in their i)erfect reason (juizo) . 

IV. Deaf-mutes, who cannot manifest their will {von- 
tade). 

Art. 1628. Supervening incapacity does not invalidate 
an effective (efficaz) will, nor is the will of an incapable 
validated by the supervening of capacity. 

CHAPTER III. 

Op the Ordinary Forms op a Will. 
Section I. General Provisions. 

Art. 1629. This Code recognizes as ordinary wills : 

I. The public will. 

II. The closed will. 

III. The private (particular) will. 

Art. 1630. The conjunctive will, whether simultaneous, 
reciprocal or correspective, is prohibited. 

Art. 1631. No special wills, other than those contem- 
plated in this Code (Arts. 1656-1663), are admitted. 

Section II. Of the Public Testament. 

Art. 1632. Essential requisites of the public testament 
are: 
I. That it be written by a public official in his book of 



PUBLIC TESTAMENTS. 323 

notes, in accordance with the dictation or the declarations 
of the testator, in the presence of five witnesses. 

II. That the witnesses be present (assistam) during the 
entire act. 

III. That, after being written, it be read by the official, 
in the presence of the testator and of the witnesses, or by 
the testator, if he wishes, in the presence of the witnesses 
and of the official. 

IV. That, immediately after the reading, the act be 
signed by the testator, by the witnesses and by the official. 

Single Paragraph. The declarations of the testator shall 
be made in the national language. 

Art. 1633. . If the testator does not know how or is un- 
able to sign, the official shall so declare, and in this case, 
one of the instrumental witnesses shall sign for the testator, 
and at his request. 

Art. 1634. The public official, specifying each one of 
these formalities, shall certify {portard por fe), in the tes- 
tament, that all of them have been observed. 

Single Paragraph. If any one of them is omitted {fal- 
tar) , or is not mentioned, the testament shall be void, and 
the public official shall be civilly and criminally respon- 
sible. 

Art. 1635. The person is considered qualified (habili- 
tado) to make a public testament, who can make his dec- 
larations in audible voice {de viva voz), and verify by his 
reading, that they have been faithfully recorded (exaradas) . 

Art. 1636. The individual entirely deaf, if able to read, 
shall read his testament, and if he does not know how to 
read, he shall designate some one to read it in his place, the 
witnesses being present. 

Art. 1637. A blind person is permitted to make only a 
public testament, which shall be read to him, in a loud 



324 CIVIL CODE OP BRAZIL. 

voice, twice, once by the official, and again by one of the 
witnesses, designated by the testator ; mention of all which 
shall be made in detail in the testament. 

Section III. Of the Closed Testament. 

Art. 1638. Essential requisites of the closed testament 
are: 

I. That it be written by the testator, or by another per- 
son at his request. 

II. That it be signed by the testator. 

III. That if the testator does not know or cannot sign, 
it be signed by the person who wrote it for him. 

IV. That the testator deliver it to the official in the 
presence, at least, of five witnesses. 

V. That the official, before the witnesses, ask the testator 
if that is his testament, and if he wishes it to be approved, 
if the testator has not already so declared. 

VI. That at once, in the presence of the witnesses, the 
official make a record {exare o awto) of the approval, de- 
claring therein that the testator delivered the testament to 
him and declared it his (o tinha por seu), good, firm and 
valid {valioso). 

VII. That immediately after the last word he commences 
the instrument of approval. 

VIII. That, if this is not possible, for absolute want of 
space on the last written page, the official put upon it his 
public sign-manual {signal) and so declare it in the in- 
strument. 

IX. That the instrument or record {mito) of approval 
be read by the official, and signed by him, by the witnesses 
and by the testator, if he knows how or can. 

X. That, if the testator does not Imow or cannot sign, 
one of the witnesses shall sign for him, declaring at the end 
(pe) of the signature, that he does it at the request of the 
testator, who does not know or cannot sign. 



CLOSED TESTAMENTS. 325 

XI. That the notary {tabelliao) close and sew it, after 
concluding the instrument of approval. 

Art. 1639. If the official had written the testament at 
the request of the testator, he may, nevertheless, approve it. 

Art. 1640. The testament can be written, in the national 
or a foreign language, by the testator himself, or by another 
at his request. The signature shall always be that of the 
testator himself, or of the person who wrote the will for him 
(Art. 1638, No. I). 

Art. 1641. A person who does not know to read, or can- 
not read, shall not dispose of his property by closed testa- 
ment. 

Art. 1642. A deaf-mute may make a closed will, pro- 
vided that he wrote it all, and signed it with his hand, and 
that, on delivering it to the public official, before the five 
witnesses, he wrote on the outer face of the paper, or of 
the wrapper, that it is his testament, the approval of which 
he requests of him. 

Art. 1643. After being approved and closed, the testa- 
ment shall be ddivered to the testator, the official shall 
enter (langard), in his book, a note of the place, day, 
month and year in which the testament was approved and 
delivered. 

Art. 1644. The testament shall be opened by the judge, 
who shall cause it to be registered and filed in the proper 
notarial office (cartorio a que tocar), ordering that it be 
complied with, if he finds no external defect (vicio) which 
renders it suspected of nullity or falsity. 

Section IV. Of the Private Testament. 

Art. 1645. Essential requisites of the private testament 
are: 



326 CIVIL CODE OF BRAZIL. 

I. That it be written and signed by the testator. 

II. That five witnesses join {intervenham) in it, besides 
the testator. 

III. That it be read before the witnesses, and after being 
read, signed by them. 

\rt. 1646. Upon the death of the testator, the will shall 
be published in probate proceedings (em juizo), with cita- 
tion of the legitimate heirs. 

Art. 1647. If the witnesses are agreed (forem contestes) 
abovit the fact of the disposition, or, at least, about its hav- 
ing been before them, and if they acknowledge their own 
signatures, as well as that of the testator, the testament 
shall be confirmed. 

Art. 1648. If as many as (ate) two of the witnesses are 
missing (faltana), by reason of death, or absence in a 
place unknown, the testament can be confirmed, if the three 
remaining are agreed, in the terms of the preceding Article. 

Art. 1649. The private testament may be written in a 
foreign language, provided that the witnesses understand it. 

Section V. Of the Testamentary Witnesses. 

Art. 1650. The following cannot be witnesses in testa- 
ments: 

I. Minors under sixteen years of age. 

II. Insane persons (loucos) of all kinds. 

III. Deaf-mutes and blind. 

IV. The instituted heir, his ascendants and descend- 
ants, brothers and sisters, and spouse. 

V. The legatees. 



CODICILS. 327 

CHAPTER IV. 

Op Codicils. 

Art. 1651. Every person capable of maJdng a will {tes- 
tar) may, by his private writing, dated and signed, make 
special dispositions in regard to his burial, in regard to 
alms {esmolas) of small amount to certain and determined 
persons, or, inderterminately, to the poor of a certain place, 
as well as legacies of personal property, clothing or jewelry, 
not very valuable, of his personal use (Art. 1797). 

Art. 1652. These acts, saving the right of a third per- 
son, shall be good (valerao) as codicils, whether or not their 
author left a testament. 

Art. 1653. Executors (testamenteiros) may be appointed 
or substituted in the manner provided in Art. 1651. 

Art. 1654. Acts of this kind are revoked by like acts, 
and are considered as revoked, if there is a later testament 
of any kind, in which they are not confirmed or modified. 

Art. 1655. If the codicil is dated, it will be opened in 
the same manner as a closed testament (Art. 1644). 

CHAPTER V. 

Of Special Testaments. 
Section I. Of the Maritime Testament. 

Art. 1656. On national ships of war or merchant ves- 
sels, in voyage on the high seas, the testament shall be made 
(lavrado) by the commander, or by the ship's recorder 
(escrivao de bordo), who will draw up (redigird) the dec- 
larations of the testator, or will write them as dictated by 
him, before two apt witnesses, preferably chosen from 



328 CIVIL CODE OP BRAZIL. 

among the passengers, present at the entire act, and who 
shall sign the instrument after the testator. 

Single Paragraph. If the testator cannot write, one of 
the witnesses will sign for him, declaring that he does so at 
his request. 

Art. 1657. The testator, if he wishes, may himself write 
the testament, or have it written by another. In the first 
case, the testator himself shall sign ; in the second, the per- 
son who wrote it, with the declaration 'that he subscribes 
it at the request of the testator. 

§ 1. The testament thus made shall be delivered by the 
testator to the commander or ship's recorder {escrivao de 
hordo), before two witnesses, who recognize and understand 
the testator, the latter declaring, at the time {no mesmo 
ado), that the writing presented is his testament. 

§ 2. The commander, or the recorder, shall receive it, 
and at once, under the writing, shall certify to all that 
occurred, dating and signing with the testator and the wit- 
nesses. 

Art. 1658. The maritime testament shall be without ef- 
fect (caducard) , if the testator does not die during the voy- 
age, nor within three months subsequent to his disembark- 
ing on land, where he may make, in the ordinary form, 
another Avill. 

Art. 1659. The maritime testament shall not be valid 
{nao valerd), although made in the course of a voyage, if at 
the time it was made the ship was in port, where the tes- 
tator might disembark and make a will in the ordinary form. 

Section II. Of the Military Testament. 

Art. 1660. The testament of soldiers {militares) and 
others in the service of the army in campaign, within or 



MILITABT WILLS. 329 

without the country, as well as in a place under siege, or 
the communications of which are cut, may be made, if there 
is no public official, before two witnesses, or three if the 
testator was unable or did not know how to sign, in which 
case the third shall sign for him. 

§ 1. If the testator belongs to a detached corps or sec- 
tion of corps, the testament shall be written by the respect- 
ive commander, although he is an inferior officer. 

§ 2. If the testator is under treatment in a hospital, the 
testament shall be written by the respective health officer, 
or by the director of the establishment. 

§ 3. If the testator is the officer of highest rank {mais 
graduado), the testament shall be written by the officer 
who substitutes him. 

Art. 1661. If the testator knows how to write, he may 
make the testament with his own hand, provided that he 
dates and signs it in full (por extenso), and presents it 
open or closed, in the presence of two witnesses to the 
auditor, or to the commissioned officer {official de patente), 
who acts for him in this case of need (qiie Ihe faga as vezes 
neste mister). 

Single Paragraph. The auditor, or officer, to whom the 
testament is presented, shall note, on any part of it, the 
place, day, month and year, in which it was presented to 
him. This note shall be signed by him and by the said wit- 
nesses. 

Art. 1662. The military testament becomes without ef- 
fect (cadtica), provided {desde que) that after it was made, 
the testator shall be, for three consecutive months, in a 
place where he can make a will {test or) in the ordinary 
form, unless {salvo se) such testament shows {apresentar) 
the solemnities prescribed in the Single Paragraph of the 
preceding Article. 



330 CIVIL CODE OP BRAaL. 

Art. 1663. The persons designated in Art. 1660, if en- 
gaged in combat, or wounded, may make a nuncupative will 
(testar nuncupativamente) , confiding their last will (von- 
iade) to two witnesses. 

Single Paragraph. Such testament shall not, however, 
have effect, if the testator does not die in the war, and 
recovers from his wound. 

CHAPTER VI. 
Of Testameintabt Dispositions in General. 

Art. 1664. The appointment (nomeagao) of an heir, or 
legatee, may be made unconditionally, upon condition, for a 
certain purpose (fim) or manner (modo), or for a certain 
cause. 

Art. 1665. The designation of the time in which the right 
of the heir must commence or cease, except in dispositions 
in trust (fideicommissarias) , shall be held as entirely inef- 
fective (por nao escripta) . 

Art. 1666. When the testamentary clause is susceptible 
of different interpretations, that which best assures the 
observance of the will {vontade) of the testator, shall pre- 
vail. 

Art. 1667. The disposition is void : 

I. Which institutes an heir, or legatee, upon the im- 
posed (captatora) condition that the latter shall dispose, 
also by will, in favor (henefkio) of the testator, or of a 
third person. 

II. Which refers to an uncertain person, whose identity 
cannot be ascertained {averiguar). 

III. Which favors an uncertain person, leaving (com- 
mettendo) the determination of his identity to a third per- 
son. 



VALIDITY OF WILLS. 331 

IV. Which leaves to the judgment {arbiirio) of the heir, 
or of another person, to fix the value of the legacy. 

Art. 1668. The disposition, however, is valid (valerd) : 

I. In favor of an uncertain person who must be deter- 
mined by a third person, from among two or more persons 
mentioned by the testator, or belonging to a family, or to a 
collective body, or to an establishment designated by him. 

II. In remuneration of services rendered to the testator, 
on the occasion of the illness of which he died, although 
the determination of the value of the legacy is left to the 
judgment (arbitrio) of the heir, or of another person. 

Art. 1669. The general disposition in favor of the poor, 
of private charitable establishments, or of those of public 
assistance, shall be understood to relate (relatiA^a) to the 
poor of the place of the domicile of the testator at the time 
of his death, or to the establishments located there, unless it 
manifestly appears (constar) that he had in mind to bene- 
fit those of another locality. 

Single Paragraph. In these cases, private institutions 
shall always be preferred to public ones. 

Art. 1670. Error in the designation of the person of the 
heir, of the legatee, or of the thing bequeathed (legada), 
annuls the disposition, except that if, by the context of the 
testament, by other documents, or by unequivocable facts, 
the person or thing to which the testator wished to refer, 
can be identified. 

Art. 1671. If the testament names two or more heirs, 
without determining (discriminar) the part of each one, 
the portion of which the testator can dispose {a porgdo dis- 
ponivel do testador), shall be divided equally between all. 

Art. 1672. If the testator names certain heirs individ- 
ually, and others collectively, the inheritance shall be 



332 CIYIL CODE OP BBAZIL. 

divided into as many quotas as there are individuals and 
groups designated. 

Art. 1673. If the quotas of each heir are determined, 
and do not absorb all the estate, the remainder shall belong 
to the legitimate heirs, in accordance with the order of 
hereditary succession. 

Art. 1674. If the shares (quinhoes) of some, and not of 
the other heirs, are determined, the remainder, after the 
hereditary portions of the former are paid in full {com- 
pletas), shall be distributed and shared {quinhoar-se-d, dis- 
tribuidamente) , equally, to the latter. 

Art. 1675. If the testator disposes that a certain and 
determined object, from among those of the estate, shall 
liot go {nao caiba) to the instituted heir, it shall go {tocard) 
to the legitimate heirs. 

Art. 1676. The clause forbidding alienation {de inalie- 
nabilidade) , temporarily, or for life, imposed upon property 
by testators or donors {doadores), cannot in any case be 
invalidated or dispensed by judicial acts of any kind, upon 
pain of nullity, except in cases of expropriation for neces- 
sity or public utility, and of debts arising for taxes (im- 
postos) relative to the respective immovables. 

Art. 1677. When, in the cases (hypotheses) provided in 
the preceding Article, any of the property affected by such 
clause {clausulados) is alienated, the proceeds shall be con- 
verted into other property, which shall be subrogated in the 
obligations of the former. 

CHAPTER VII. 

Op Legacies. 

Art. 1678. The legacy of a thing belonging to another 
person (coisa alheia) is void. But if the thing bequeathed. 



LEGACIES. 333 

though not belonging to the testator when he made the will 
{testou), afterwards becomes his, by whatever title, the dis- 
position shall have effect, as if the thing were his at the 
time he made the testament. 

Art. 1679. If the testator orders that the heir or legatee 
deliver a thing belonging to him {de sua propriedade) to 
another, if he does not comply it shall be understood that 
he renounces the inheritance, or the legacy (Art. 1704). 

Art. 1680. If the thing bequeathed belonged only in 
part to the testator, or, in the case of the preceding Article, 
to the heir or to the legatee, the legacy will be effective 
(valerd) only as to such part. 

Art. 1681. If the legacy is of a movable thing, which is 
determined by the genus (genero), or by the species (es- 
pecie), it shall be complied, although such thing does not 
exist among the property left by the testator. 

Art. 1682. If the testator bequeathes a thing of his, spe- 
cifying it (singidarizando-a) , the legacy will only be effect- 
ive, if, at the time of his death, it is found among the prop- 
erty of the estate. If, however, the thing exists among the 
property of the testator, but in a quantity inferior to the 
legacy, the latter will only be effective as to the existing 
quantity. 

Art. 1683. The legacy of a thing, or quantity, which 
must be brought (tirar-se) from a certain place, shall only 
be effective if it is found therein, and so far as the quantity 
which is found there. 

Art. 1684. The legacy consisting of a thing certain, 
which, at the date of the testament, already belonged to the 
legatee, or was afterwards transferred gratutiously by the 
testator, shall be void. 

Art. 1685. The legacy of a credit, or of the acquittance 



334 CIVIL CODE OP BRAZIL. 

{quitagao) of a debt, shall be effective only up to (ate) the 
amount of the one or of the other, at the time of the death 
of the testator. 

§ 1. This legacy is complied, by the heir delivering the 
respective title to the legatee. 

§ 2. This legacy does not include debts posterior to the 
date of the testament. 

Art. 1686. Unless expressly so declared by the testator, 
the legacy which he makes to a creditor shall not be con- 
sidered as a set-off {compensagao) to his debt. 

Such legacy shall likewise subsist in full, if the debt is 
posterior to it, and the testator settled it (a solveu) before 
his death. 

Art. 1687. The legacy of support {alimentos) embraces 
food (sustento), medical care (cura), clothing and home, 
so long as the legatee lives, besides education, if he is a 
minor. 

Art. 1688. The legacy of usufruct, without fixing the 
time, is understood as left to the legatee for his life. 

Art. 1689. If one who bequeathes any property, after- 
wards adds to it new acquisitions, the latter, although CMi- 
tiguous, are not included in the immovable bequeathed, 
unless by express declaration of the testator to the con- 
trary. 

Sipgle Paragraph. The provisions of this Article are 
not applied to necessary, useful or voluptuary improve- 
ments (hemfeitorias) made upon the bequeathed estate 
(predio) . 

CHAPTER VIII. 

Op the Effects op Legacies and Theib Payment. 

Art. 1690. The unconditional (pura e simples) legacy 
confers upon the legatee, from the death of the testator, 



LEGACIES. 335 

the right, transmissible to his successors, to demand the 
thing bequeathed, from the instituted heirs. 

Single Paragraph. The legatee cannot, however, by his 
own authority, enter into possession of the thing bequeathed. 

Art. 1691. The right of demanding the legacy shall not 
be exercised so long as the validity of the testament may 
be in contest {se litigue), and, in legacies upon condition 
(condicionaes) , or upon time (a prazo), so long as the con- 
dition pends, or the time is not arrived (s,e ndo venga). 

Art. 1692. Prom the day of the death of the testator, 
the thing bequeathed, with the fruits which it produces, 
belongs to the legatee. 

Art. 1693. The legacy of money only draws (vence) 
interest from the day on which the person obliged to pro- 
vide it (prestal-o) becomes in default (se constituir em 
mora) . 

Art. 1694. If the legacy consists of a life income {renda 
vitalicia), or periodical pension, the one or the other shall 
run from the death of the testator. 

Art. 1695. If the legacy is of certain quantities in periodi- 
cal installments (prestagoes) , the first period shall date 
from the death of the testator, and the legatees shall be en- 
titled to each installment at the beginning of each of said 
successive periods, although he may die before its end (antes 
do termo delle). 

Art. 1696. If the payments {prestagoes) are periodical, 
only in the term {so no termo) of each period can they be 
demanded (exigir). 

Single Paragraph. If they were left, however, by way 
of support {a titulo de aliment os), they shall be paid at the 
beginning of each period, provided that the testator did 
not otherwise dispose. 



336 CIVIL CODB OF BRAZIL. 

Art. 1697. If the legacy consists of a thing determined 
by its genus, or by its species, the heir has the right to 
select it, observing, however, the average between the best 
and the worst quality of the same kind (congeneres) of 
things (Art. 1699). 

Art. 1698. The same rule shall be observed when the 
choice is left to the judgment {arbitrio) of a third person; 
and if the latter does not wish or cannot exercise it, the 
judge is authorized to make it, observing the provision of 
the last part of the preceding Article. 

Art. 1699. If the option were left to the legatee, the lat- 
ter may select, from the determined genus or species, the 
best thing there is in the estate ; and if a thing of such kind 
does not exist in it, the heir shall give it to him of another 
like kind (congenere) , observing the provision of the last 
part of Art. 1697. 

Art. 1700. In an alternative legacy, the option is pre- 
sumed to be left to the heir. 

Art. 1701. If the heir, or legatee, who has the option, 
dies before exercising it, this right shall pass to his heirs. 

Single Paragraph. Once made, however, the option is 
irrevocable. 

Art. 1702. If the testator institutes more than one heir, 
without designating those who are to execute the legacies, 
all the instituted heirs shall respond for them, in proportion 
to what they inherit. 

Art. 1703. If the testator intentionally commits the exe- 
cution of the legacies to certain heirs, they only shall re- 
spond for them. 

Art. 1704. If any legacy consists of a thing belonging 
to an heir or legatee (Art. 1679), he only is bound to comply 
it, with recovery (regresso) against the co-heirs for the 



LAPSHD LHGACIHB. 337 

quota of each one, unless the testator expressly disposes to 
the contrary. 

Art. 1705. The expenses and risks of the delivery of the 
legacy are at the account of the legatee, unless the testator 
otherwise dispose. 

Art. 1706. The thing bequeathed, with its accessories, 
shall be delivered in the place and condition (est ado) in 
which it is found at the death of the testator, passing to 
the legatee with all the charges (encargos) which burden it. 

Art. 1707. In legacies with charges, the provisions of 
Art. 1180 are applied. 

CHAPTER IX. 

Of the Lapsing op Legacies (Caducidade). 

Art. 1708. The legacy will lapse (cadticard) : 

I. If, after the testament, the testator modifies the 
thing bequeathed, in such way that it no longer has the 
form, nor the denomination, which it had. 

II. If the testator alienates, in whole or in part, and by 
any title, the thing bequeathed. In such case, the legacy 
shall lapse, so far as (ate onde) it ceased to belong to the 
testator. 

III. If the thing perishes, or is lost by eviction (for 
evicta), whether the testator is living or dead, without the 
fault of the heir. 

IV. If the legatee is excluded from the succession, in 
the terms of Art. 1595. 

V. If the legatee dies before the testator. 

Art. 1709. If the legacy is of two or more things in the 
alternative, and some of them perish, it shall subsist with 
respect to the remainder. If part of one perishes, the legacy 
will be effective as to the remainder of it. 



338 CIVIL CODE OF BRAZIL. 



CHAPTER X. 

Of the Bight op Accretion Between Heirs and 
Legatees. 

Art. 1710. The right of accretion between co-heirs occurs 
(verifica-se) when, by the same disposition of a testament, 
they are jointly called to the inheritance in shares not 
determined (Art. 1712). 

Single Paragraph. Co-legatees shall also have this right, 
when they are jointly named in respect to one only thing, 
determined and certain, or when the object bequeathed 
cannot be divided, without risk of its deterioration. 

Art. 1711. The distribution of the parts or shares is 
considered made, by the testator, when he designates the 
quota, or the object, which he leaves to each of those named. 

Art. 1712. If one of the heirs named dies before the 
testator, renounces the inheritance, or is excluded from it, 
and also, if the condition, upon which he was instituted, is 
not fulfilled (nao se verificar) , his share shall accrete, saving 
the right of the substitute to the part of the joint co-heirs 
(Art. 1710). 

Art. 1713. When the right of accretion is not effected, in 
the terms of the preceding Article, the vacant quota of the 
heir named is transmitted to the legitimate heirs. 

Art. 1714. The co-heirs to whom accretes the share of 
the one who failed to inherit, are subject to the obligations 
and charges which encumber it. 

Single Paragraph. This provision applies equally to the 
co-legatee, who is advantaged by the lapsing in whole or 
part of the legacy. 

Art. 1715. If the right of accretion does not exist be- 
tween the co-legatees, the quota of the failing one (do que 



CAPACITY TO INHERIT. 339 

f altar) accretes to the heir, or legatee, who is charged with 
satisfying such legacy, or to all the heirs, in proportion to 
their shares, if the legacy was deducted from the inherit- 
ance. 

Art. 1716. If usufruct only is bequeathed jointly to two 
or more persons, the part of the one failing {da que f altar) 
accretes to the co-legatees. If, however, the legacy is not to 
them jointly {nao houve conjuncgao entre estes), or if, in 
spite of being joint, only a certain part of the usufruct was 
bequeathed to them, the quotas of those failing shall be 
consolidated into the property {na propriedade) , according 
as they may fail (a medida que elles forem faltando). 

CHAPTER XI. 

Of the Capacity to Acquire By Testament. 

Art. 1717. Persons existing at the time of the death of 
the testator, who are not by this Code declared incapable, 
may acquire by testament. 

Art. 1718. "Persons not conceived until the death of the 
testator, are absolutely incapable of acquiring by testament, 
unless the latter makes disposition referring to eventual off- 
spring of persons by him designated and existing at the 
opening of the succession. 

Art. 1719. Nor can the following be named as heirs or 
legatees : 

I. The person who, at request, wrote the testament 
(Arts. 1638, no. I; 1656 and 1657), nor his spouse, his 
ascendants, descendants, and brothers or sisters. 

II. ' The witnesses to the testament. 

III. The concubine of the married testator. 

IV. The public official, civil or military, nor the com- 
mander, or scribe (escrivao), before whom it was made, as 
well as who made, or approved, the testament. 



340 CIVIL CODE OP BEAZIL. 

Art. 1720. The dispositions in favor of incapables (Arts. 
1718 and 1719) are void, even when they simulate the form 
of an onerous contract, or benefit them through an inter- 
posed person. 

The father, the mother, the descendants and the spouse 
of the incapable, are considered as interposed persons. 

CHAPTER XII. 

Op the Necessary HmRS. 

Art. 1721. The testator who has a descendant or an 
ascendant capable of succession (successivel) , cannot dis- 
pose of more than one half of his property ; the other half 
shall belong in full right {de plena direito) to the descend- 
ant, and in his default, to the ascendant, of whom it con- 
stitutes the legitimate inheritance (a legitima), according 
to the provisions of this Code (Arts. 1603 to 1619, and 
1723). 

Art. 1722. The disposable half (Art. 1721) is calculated 
upon the total of the property existing at the death of the 
testator, after deducting the debts and funeral expenses. 

Single Paragraph. The legitimate inheritance is cal- 
culated upon the sum which results by adding to the half 
of the property which the testator then possessed, the 
amount of the donations made by him to his descendants 
(Art. 1785). 

Art. 1723. Notwithstanding the right recognized in Art. 
1721 in favor of the descendants and ascendants, the tes- 
tator may determine the conversion of the property of the 
legitimate inheritance into other species, prescribe that they 
shall be incommunicable, confide them to the free adminis- 
tration of the woman heir, and impose upon them condi- 
tions of inalienability, temporarily or for life. The clause 
of inalienability, however, shall not prevent the free dii- 



REDUCTION OP LEGACIES. 341 

position of the property by testament, and in default there- 
of, its transmission, free from any incumbrance, to the 
legitimate heirs. 

Art. 1724. The necessary heir, to whom the testator 
leaves his disposable half, or any legacy, shall not lose his 
right to the legitimate inheritance. 

Art. 1725. In order to exclude the spouse or the col- 
lateral relatives, it suffices that the testator disposes of his 
partimony, without mention of them {os contemplar) . 

CHAPTER XIII. 

Of the Reduction of Testamentary Dispositions. 

Art. 1726. When the testator disposed only in part of 
his disposable half, it will be understood that he instituted 
the legitimate heirs in the remainder. 

Art. 1727. The dispositions which exceed the disposable 
half, shall be reduced to the limits of it, in conformity with 
the provisions of the following paragraphs : 

§ 1. Where it is shown that the testamentary disposi- 
tions exceed the disposable portion, the quotas of the in- 
stituted heir or heirs shall be proportionally reduced until 
it suffices, and if it is not sufficient, also the legacies, in the 
proportion of their value. 

§ 2. If the testator, anticipating the case, disposes that 
certain heirs or legatees be paid in full (se inteirem) by 
way of preference, the reduction shall be made in the other 
shares or legacies, observing, with respect to them, the 
order established in the above paragraph. 

Art. 1728. When the legacy subject to reduction con- 
sists of a divisible estate, it will be made by dividing it 
proportionally. 



342 CIVIL CODE OP BRAZIL. 

§ 1. If the division is not possible, and the excess of the 
legacy amounts to more than one-fourth of the value of the 
landed estate (predio), the legatee shall leave the entire 
immovable bequeathed, in the inheritance, and shall have 
the right to demand of the heirs its value out of {que 
couber) the disposable half. If the excess is not more than 
one-fourth, the legatee shall pay it (tornal-o-d) in money 
to the heirs, and shall keep the land {predio). 

§ 2. If the legatee is at the same time a necessary heir, 
he may pay {inteirar) his legitimate inheritance in the 
same immovable, in preference to the others, provided that 
the legitimate inheritance {ella) and the subsistent part 
of the legacy absorb the value of it. 

CHAPTER XIV. 

Of Substitutions. 

Art. 1729. The testator may substitute another person 
for the heir or legatee named, in the event that one or the 
other does not wish or cannot accept the inheritance or the 
legacy. It is presumed that the substitution was intended 
for the two alternatives, although the testator refers to 
only one. 

Art. 1730. It is also lawful for him to substitute many 
persons for one, or vice versa, and even to substitute with 
or without reciprocity. 

Art. 1731. The substitute is subject to the charge or 
condition imposed upon the one whom he substitutes {suh- 
stituido), when the intention manifested by the testator is 
not otherwise, or it does not otherwise result from the 
nature of the condition or charge. 

Art. 1732. If reciprocal substitution is established 
among many co-heirs or legatees having unequal parts, the 



SUBSTITUTION OP HEIRS. 343 

proportion of the shares fixed in the first disposition shall 
be understood to be maintained in the second. 

If, however, with the others previously named, some 
additional person is included in the substitution, the vacant 
share shall belong in equal parts to the substitutes. 

Art. 1733. The testator may also institute heirs or 
legatees by means of a trust {fideicommisso) , imposing on 
one of them, the trustee (gravado) or fiduciary, the obliga- 
tion, upon his death, at a certain time, or upon a certain 
condition, to transmit the inheritance or the legacy to an- 
other, who is called the beneficiary (se qualifica de fidei- 
commissario) . 

Art. 1734. The trustee has the ownership (propriedade) 
of the inheritance or legacy, but restricted and determin- 
able (resoluvel). 

Single Paragraph. He is, moreover, obliged to proceed 
to inventory the property in trust (gravado), and, if the 
beneficiary so requires of him, to give a bond to restore it. 

Art. 1735. The beneficiary may renounce the inherit- 
ance or legacy, and in this case the trust fails {caduca), 
and the property shall remain the absolute property of the 
trustee, if the testator did not dispose to the contrary. 

Art. 1736. If the beneficiary accepts the inheritance or 
legacy, he shall be entitled to the part which might accrete 
at any time to the trustee. 

Art. 1737. The beneficiary responds for the charges 
which yet remain upon the inheritance when he comes to 
the succession. 

Art. 1738. The trust fails (caduca) if the beneficiary 
dies before the trustee, or before the condition resolutory of 
the right of the latter is fulfilled. In this case the OTvner- 
ship is consolidated in the trustee in the terms of Art. 1735. 



344 CIVIL CODE OP BRAZIL. 

Art. 1739. Trusts beyond the second degree (aUm do 
segundo grdo) are void. 

Art. 1740. The nullity of an illegal substitution does 
not prejudice the institution, which shall be valid without 
the resolutory charge. 

CHAPTER XV. 

Op Disinheritance (Desherdaqao). 

Art. 1741. The necessary heirs may be deprived of their 
legitimate inheritance, or disinherited, in all cases in which 
they may be excluded from the succession. 

Art. 1742. The disinheritance can only be ordered in the 
testament, with express declaration of cause. 

Art. 1743. The instituted heir, or whoever is benefited 
by the disinheritance, must prove the truth of the cause 
alleged by the testator (Art. 1742). 

Single Paragraph. If the cause invoked for the disin- 
heritance is not proved, the institution, and the disposi- 
tions, which prejudice the legitimate inheritance of the dis- 
inherited heir, are void. 

Art. 1744. Besides the causes mentioned in Art. 1595, 
the following causes authorize the disinheritance of de- 
scendants by their ascendants : 

I. Physical offenses. 

II. Serious insult {injuria grave) . 

III. Unchastity {deshonestidade) of the daughter who 
lives in the paternal home. 

IV. Illicit relations with the step-mother, or step- 
father. 

V. Neglect (desamparo) of the ascendant in mental 
alienation or grave sickness. 

Art. 1745. Likewise, besides the causes enumerated in 



REVOCATION OF WILtS. 345 

Art. 1595, the following causes authorize the disinheritance 
of the ascendants by the descendants : 

I. Physical offenses. 

II. Serious insult. 

III. Illicit relations with the wife of the son or grand- 
son. 

IV. Neglect of the child or grandchild in mental aliena- 
tion or serious sickness. 



CHAPTER XVI. 

Op the Revocation of Testaments. 

Art. 1746. The testament may be revoked in the same 
manner and form in which it may be made. 

Art. 1747. The revocation of the testament may be total 
or partial. 

Single Paragraph. If the revocation is partial, or if the 
later testament does not contain an express clause of revo- 
cation, the former subsists in everything that is not con- 
trary to the latter. 

Art. 1748. The revocation shall be effective, although 
the testament which contains it becomes ineffective {cadu- 
que) by exclusion, incapacity, or renouncement of the heir 
named in it; but it shall not be effective, if the revoking 
testament is annulled because of the omission or infraction 
of essential solemnities, and for intrinsic vices. 

Art. 1749. The closed testament which the testator 
opens or tears, or which is opened or torn by his consent, 
shall be taken as revoked. 

Art. 1750. If there should appear (sobrevindo) a de- 
scendant capable of succeeding (successivel) to the tes- 
tator, which he did not have, or did not know, when he 



346 CIVIL CODE OP BRAZIL. 

made the will, the testament is broken in all its dispositions, 
if such descendant survives the testator. 

Art. 1751. The testament made in ignorance of the ex- 
istence of other necessary heirs, is also broken. 

Art. 1752. The testament is not broken, however, in 
which the testator disposes of his half, without contemplat- 
ing the necessary heirs of whose existence he knew, or dis- 
inheriting them, as to that part, without mention of legal 
cause (Arts. 1741 and 1742) . 

CHAPTER XVII. 

Of the Executor (Testamenteiro). 

Art. 1753. The testator may name one or more executors 
(testamenteiros) , joint or separate, in order that they may 
carry out the dispositions of his last will (vontade). 

Art. 1754. The testator may also confer upon the exe- 
cutor the possession and administration of the estate {he- 
ranga), or of part of it, if he has no spouse or necessary 
heirs. 

Single Paragraph. Any heir may, however, require im- 
mediate division (partUha), or return of the inheritance, 
upon providing (habilitando) the executor with the neces- 
sary means for complying with the legacies, or giving borid 
to pay them (prestal-os) . 

Art. 1755. If the executor has the possession and admin- 
istration of the property, he must make an inventory and 
comply with the testament. 

Single Paragraph. If he has not the possession and 
administration of the property, he shall have the right to 
require of the heirs the means for complying with the testa- 
mentary dispositions; and if the legatees so demand, he 
may designate (nomear) property of the estate for exe- 
cution. 



EXEOUTOES. 347 

Art. 1756. The executor appointed, or any party inter- 
ested, may require, or the judge may ex officio order, any 
person withholding (o detentor) the testament, to present 
it to the registry. 

Art. 1757. The executor is obliged to comply with the 
testamentary dispositions within the time prescribed by the 
testator, and to render accounts of what he has received 
and expended, his responsibility subsisting as long as the 
execution of the testament continues (durar). 

Art. 1758. The expenditures made by the executor in 
the discharge of his duties and in executing the testament, 
shall be charged (levar-se-ao) in his account. 

Art. 1759. If the expenditures are disallowed (glozadas) 
as illegal, or as not in accordance with the testament, the 
executor shall be removed, and shall lose the reward 
(premio) left by the testator (Art. 1766). 

Art. 1760. The executor has the right {compete ao), with 
or without the concurrence of the maker of the inventory 
(inventariante) and of the instituted heirs, to contest {pro- 
piignar) the validity of the testament. 

Art. 1761. Besides the attributes indicated (exaradas) 
in the preceding Articles, the executor shall have those con- 
ferred upon him by the testator, within the limits of the 
law. 

Art. 1762. If the testator does not grant a longer time, 
the executor shall comply with the testament and render 
accounts within the lapse of one year, counted from the 
acceptance of the office (testa/mentaria) . 

Single Paragraph. This period may, however, be ex- 
tended for good cause (motivo cabal) . 

Art. 1763. In default of an executor appointed by the 
testator, the execution of the will pertains {compete a) to 



348 CIVIL CODE OF BBAZIL. 

the head of the household (casal), and in default of this, to 
the heir named by the judge. 

Art. 1764. The office of executor (o encargo da testa- 
ment aria) is not transmitted to the heirs of the executor, 
nor can it be delegated (delegavel) . But the executor may- 
appoint an attorney (procurador) , to represent him with 
special powers {fazer-se representor) in and out of court 
(juizo). 

Art. 1765. If there be at the same time more than one 
executor, who have accepted the office, each of them may 
exercise it, in default of the others. But all of them are 
jointly obligated to render account of the property en- 
trusted to them, unless each one has, under the testament, 
distinct functions, and limits himself to them. 

Art. 1766. When the executor is not an heir or legatee, 
he shall be entitled to a compensation (premio), which, if 
not fixed by the testator, shall be from one to five per cent, 
in the discretion {arhitrado por) of the judge, upon the 
entire net estate, according to the amount of it, and the 
greater or less difficulty of the execution of the testament 
(Arts. 1759 and 1768). 

Single Paragraph. This compensation shall be deducted 
only from the disposable half, when there is a necessary 
heir. 

Art. 1767. The executor who is a legatee may prefer the 
compensation {premio) to the legacy. 

Art. 1768. The compensation which the executor loses 
by being removed or for not having complied with the testa- 
ment (Arts. 1759 and 1766), shall revert to the estate. 

Art. 1769. If the testator has distributed all the estate 
in legacies, the executor shall exercise the functions of 
head of the household (casal). 



INVENTORY lEL PARTITION. 349 

TITLE IV. 
Of the Inventory and Division, 

CHAPTER I. 

Op the Inventory. 

Art. 1770. The judicial inventory and division {par- 
tilha) will be made in accordance with (na forma das) the 
laws in force in the domicile of the deceased, and observing 
the provisions of Art. 1603. It shall be begun within one 
month counted from the opening of the succession, and fin- 
ished in the three months following ; this term may be ex- 
tended by the judge, at the instance of the maker of the 
inventory, for good cause (motivo justo). 

Single Paragraph. When the last period of this Article 
is exceeded, and through the fault {culpa) of the maker of 
the inventory the division is not finished, the judge may 
remove him, if so demanded by any heir, and if he is the 
executor, may deprive him of the compensation to which he 
may be entitled (Art. 1766). 

Art. 1771. All the property of the estate, together with 
that of third persons which may be found among it, shall 
be described individually and clearly in the inventory. 

CHAPTER II. 

Op the Division (Partilha). 

Art. 1772. The heir may require the division {partilha), 
although it may be forbidden {IKe seja defeso) to him by 
the testator. 

§ 1. The assignees and creditors of the heir may also 
require it. 



350 CIVIL CODE OF BRAZIL. 

§ 2. The division is not prevented {nao dbsta) because 
one or more heirs are in possession of certain property of 
the estate {do espolio), unless thirty years have elapsed 
since the death of the owner. 

Art. 1773. If the heirs are of age (maiores) and capable, 
they may make a friendly division, by notarial act {escrip- 
tura publica), entered in the record {termos nos autos) of 
the inventory, or by private writing, approved {homolo- 
gado) by the judge. 

Art. 1774. The division shall always be judicial, if the 
heirs disagree, or if any of them is a minor or incapable. 

Art. 1775. In dividing the property, the greatest 
equality possible shall be observed, with respect to its value, 
nature and quality. 

Art. 1776. The division made by the father, by act 
inter vivos or of last will (vontade), is valid, provided that 
the legitimate inheritance of the necessary heirs is not pre- 
judiced. 

Art. 1777. The immovable which does not pertain {nao 
couber) to the share of one single heir, or does not admit of 
ready division, shall be sold at public auction, and the price 
of it divided, unless one or more heirs require that it be 
adjudicated to them, and make good (repondo) to the 
others the excess in money. 

Art. 1778. The heirs in possession of the property of 
the estate, the head of the household {(Msal), and the 
maker of the inventory, are obliged to bring into the mass 
(acervo) the fruits which they may have received since the 
opening of the succession ; they are entitled to reimburse- 
ment for the necessary and useful expenditures they may 
have made, and they respond for any damage which, by 
deceit (dolo) or fault (culpa) they may have caused. 



CONCEALED ASSETS. 351 

Art. 1779. When part of the estate consists of property- 
remote from the place of the inventory, or in litigation 
(litigiosos), or of slow liquidation, the division of the other 
property may be proceeded with within the legal term, 
reserving the former for one or more subsequent divisions 
{sohrepartilhas) , under the supervision {guarda) and ad- 
ministration of the same or of another maker of inventory, 
as may be agreed (a aprazimento) by the majority of the 
heirs. 

Property which is withheld from the inventory {sone- 
gados), as well as other property of the estate which is 
discovered after the division, is also subject to subsequent 
division (a sobrepartilha) . 

CHAPTER III. 

Of Concealed Assets (Sonegados). 

Art. 1780. The heir who conceals (sonegar) property of 
the estate, not describing it in the inventory, when it is in 
his power, or with his knowledge in that of another, or who 
omits it in the collation into which he should bring it, or 
who fails to restore it, shall lose the right which he may 
have to it. 

Art. 1781. Besides the penalty provided (comminada) 
in the preceding Article, if the concealer is the maker of 
the inventory, he shall be removed upon proof of the con- 
cealment, or if he denies the existence of the property, 
when it is indicated. 

Art. 1782. The penalty for concealment can only be 
demanded and imposed in an ordinary action, brought by 
the heirs or by the creditors of the estate. 

Single Paragraph. The sentence which is rendered in 
the action for concealment, brought by any of the heirs or 
creditors, benefits the other interested parties. 



352 CIVIL, CODE OF BRAZIL. 

Ai-t. 1783. If the property concealed is not restored, be- 
cause no longer in his power, he shall pay the amount of its 
value, besides the losses and damages. 

Art. 1784. The maker of the inventory can be accused of 
concealment {sonegagao) only after the description of the 
assets is closed, with the declaration made by him that no 
others exist to be inventoried and divided, and the heir, 
after declaring in the inventory that he does not possess 
them. 

CHAPTER IV. 

Op Collations. 

Art. 1785. The object of the collation is to equalize the 
legitimate inheritances of the heirs. The property brought 
in {conferidos) does not increase the disposable half (Arts. 
1721 and 1722). 

Art. 1786. The descendants who share in (concorrerem) 
the succession of the common ascendant, are obliged to 
bring in (conferir) the donations and the dowries (dotes), 
which they may have received from him during his life. 

Art. 1787. In the case of the preceding Article, if at the 
time of the death of the donor the donees no longer possess 
the property donated, they shall bring its value into the 
collation. 

Art. 1788. The dowries and donations which the donor 
determines should be from his half, are exempted (dispen- 
sados) from the collation, provided that they do not exceed 
such half, its value being computed as of the time of the 
donation. 

Art. 1789. The exemption from the collation may be 
granted by the donor, or endower, by testament, or in the 
deed of gift {titulo da liieralidade) . 



COLLATIONS. 353 

Art. 1790. One who renounced the inheritance, or was 
excluded from it, must, notwithstanding, bring in the dona- 
tions received, in order to replace {repor) the amount so 
taken from the legitiinate inheritance (a parte inofficiosa). 

Single Paragraph. The part of the donation or of the 
dowry, which exceeds the legitimate inheritance and plus 
{mats) the disposable half, is considered "inofficiosa" (or 
as taken from the "legitima"). 

Art. 1791. When the grandchildren, representing their 
parents, succeed to their grandparents, they shall be obliged 
to bring into the collation that which their parents would 
have to bring in, although the former may not have in- 
herited it. 

Art. 1792. The property donated, or endowed, immov- 
able or movable, shall be brought in for the certain value, 
or for the appraised value (estimaQdo) made of it at the 
date of the donation. 

§ 1. If no certain value appears from the act of dona- 
tion or of endowment, and no appraisement was made at 
that time, the property shall be brought into the division 
for the value which is then calculated it was worth at the 
time of such act. 

§ 2. Only the value of the property donated or endowed 
shall enter into the collation; but not the value of the 
accrued improvements (b&mfeitorias accrescidas) , which 
shall belong to the donee heir, who shall also stand any 
losses and damage which it has suffered. 

Art. 1793. Neither shall the ordinary expenses of the 
ascendant for the descendant, while a minor, for his educa- 
tion, studies, food, clothing, treatment in sickness, trous- 
seau and wedding expenses, and expenses of defense in 
criminal prosecution in which he has been acquitted, come 
into the collation. 



354 CIVIL CODE OF BRAZIL. 

Art. 1794. Nor are gifts in remuneration for services 
rendered to the ascendant, subject to collation. 

Art. 1795. If the donation were made by both spouses, 
it will be brought by half into the inventory of each one. 

CHAPTER V. 

Op the Payment of Debts. 

Art. 1796. The estate {heranga) responds for the pay- 
ment of the debts of the deceased; but after the division 
is made, the heirs only respond, each one in proportion to 
the part which he has in the inheritance (heranga) . 

§ 1. When, before the division, the inventory requires 
the payment of debts evidenced (constantes de) by docu- 
ments executed (revestidos de) with legal formalities, con- 
stituting sufficient proof of the obligation, and the same are 
contested (houver impugnagao) on grounds not founded 
upon the allegation of payment, accompanied by valid 
{valiosa) proof, the judge shall order that sufficient prop- 
erty be reserved, in the power of the maker of the inventory, 
for the satisfaction of the debt, upon which property exe- 
cution may opportunely be levied. 

§ 2. In the case provided in the preceding paragraph, 
the creditor must begin the action for recovery within the 
term of thirty days, under penalty of losing the benefit of 
the provision indicated. 

Art. 1797. The funeral expenses shall come from the 
amount of the estate, whether or not there are legitimate 
heirs. But expenses of services (suff radios) for the soul 
of the deceased shall only obligate the estate when ordered 
in the testament or codicil (Art. 1651). 

Art. 1798. Whenever a regressive action lies by some of 



GUARANTY OF SHARES. 355 

the heirs against others, the part of an insolvent co-heir 
shall be divided in proportion among all the others. 

Art. 1799. The legatees and creditors of the estate may 
require that the patrimony of the deceased be kept separate 
(se discrimine) from that of the heir, and in concourse with 
(em concurso com) the creditors of the latter, they shall be 
preferred in payment. 

Art. 1800. If the heir is debtor to the estate (espolio), 
his debt shall be divided equally among all, unless the 
majority consent that the debt shall be charged (imputado) 
entirely to the share of the debtor. 

CHAPTER VI. 

Of the Guaranty of the Hereditary Shares. 

Art. 1801. When the partition is adjudged, the right of 
each one of the heirs is limited to the property of his share. 

Art. 1802. The co-heirs are reciprocally obligated to in- 
demnify each other, in case of eviction of the property par- 
titioned (aquinhoados) . 

Art. 1803. This mutual obligation ceases, if there is 
agreement to the contrary, and also if the eviction is due to 
the fault (ctdpa) of the one evicted, or for a cause {facto) 
subsequent to the partition. 

Art. 1804. The one evicted shall be indemnified by the 
co-heirs in the proportion of their hereditary shares; but, 
if any of them is insolvent, the others shall respond, in the 
same proportion, for the part of the latter, less the quota 
corresponding to the one indemnified. 



356 cmL CODE op brazil. 

CHAPTER VII. 

Of the Nullity of the Paetition. 

Art. 1805. The partition, once made and adjudged, can 
only be annulled for the vices and defects which invalidate 
juridical acts in general (Art. 178, § 6, No. V). 

final dispositions. 

Art. 1806. The Civil Code shall go into effect on the 
first day of January, 1917. 

Art. 1807. All Ordinances, Letters Patent (Alvards) , 
Laws, Decrees, Resolutions, Uses and Customs concerning 
the matters of civil law {direito civil) r^ulated in this 
Code, are revoked. 

Rio de Janeiro, January 1, 1916, 95th of Independence 
and 28t'h of the Republic. 

Wenceslau Braz p. Gomes, 

President of the Republic. 

Carlos Maximiliano Pereira dos Santos. 



INDEX. 



IReferences are to Articles. Abbreviations: Intr. for Intro- 
duction of Code; 8. P. for Single Paragraph of the Article 
Cited.] 



Abandoned Channel, as mode of accession, 536-IV; rules of 
acquisition by, 544. 

Abandoned minors, disposition of, 412. 

Abandonment: as ground of divorce, 317-IV; possession lost by, 
520; as loss of ownership, 589; land becomes jvacant. Id. I 2. 

Abatement of Price; action for, prescription, 178-§2; § 5-IV; 
when demandable, 1105-1106; upon eviction, 1115; of Immov- 
able, when, 1136; See Various Titles. 

Absence: creates presumption of death, when, 10, 481-482: 

I. Guai'dianship of Absentees, 463-468; Disappearance of 
person, curator to be appointed, 463; in • default of 
mandatory, 464; judge to determine powers, law gov- 
erning, 465; spouse as legitimate curator, 466; others 
who may be curator, order, 467; estates of absent heirs, 
468; 

II. Provisional Succession, 469-480; Provisional succession 
opened when, 469; who may require opening, 470; judg- 
ment effective when, 471; inventory and partition when, 
471; Ministerio Publico to act when, 471-§ 1; collection 
of estate how made, 471-§2; order of conversion of 
movables, 472; heirs must give security, 473; when 
security cannot be given, proceedings, 473-S. P.; dis- 
position of immovables, 474; immovables only alienated 
when, 475; representation of absentee, actions, 476; 
disposition of fruits and income, 477; excluded heir 
may require share when, 478; death of absentee, effect, 
479; appearance or existence of absentee, effect, 480; 

III. Definitive Succession, 481-483; Succession becomes de- 

357 



358 INDEX. 

[References are to Articles.} 

finltlve when, effects, 481; -also in case of old age and 
long absence, 482; return of absentee or heirs, effect, 
483; estate escheats when, 483'S. P.; 
IV. Effects of Absence on Family Rights as to minors, 484. 

Absentees: when Incapable, 5-IV; prescription against, 169; pre- 
scription between, 177; loss of possession by, when, 522; 
who are In adverse possession, 551-S. P. 

Acceptance; of offer of contract, 1081-1086; See Contracts, I; 
of things sold on approval, 1145-1146; of power of attorney, 
how expressed, 1292; is presumed, when, 1293; of Inherit- 
ance. (See Successions, In, General, III. 

Access, rights of over other's lands. See Vlsinage, III. 

Accession: as means of acquiring ownership, 530; how acces- 
sion may take place, 536. See the various titles of things 
acquirable by Accession. 

Accessory Rights, prescription of, 167. 

Accessory Thing, defined, 58; follows principal, 59; Include 
fruits, etc., 60; accessories to the soil, what are, 61; im- 
provements, 62-64. 

Accident: in deceit, effects, 93; as element in damages, 1058; 
effect of in purchase and sale, 1127; insurance against, 1440. 

Accomplices, joint liability for damages, 1518; 1521-V. 

Accounts, of guardianship, 434-441; See Guardianship, VII. 

Accretion: between heirs and legatees. See Wills, X; of re- 
nouncing heir, 1589; See Accession. 

Acknowledgment: of right interrupts prescriptions, 172-V; of 
natural child, action to cancel, prescription, 178-§ 9-VI; of 
Illegitimate Children, 355-367. See Relationship, IV; of pri- 
vate instrument, when required, 1289-§ 4. 

Acts: and contracts, form of, what law governs, Intr. 11, 13; 
of civil life, persons absolutely incapable, 5; foreign, effect 
In Brazil, Intr. 17; inter vivos, for partition valid, 1776. 

Acts, juridical: defined, 81; requisites of validity, 82; personal 
incapacity not invoked against, when, 83; of incapables, by 
representatives, 84; intention governs interpretation, 85; 
voidable for error, 86; for what error voidable, 87-91; for 
Deceit, 92-97; for Coercion, 98-101; for Simulation, 102-106; 
for Fraud on Creditors, 106-113. 

Actions: against public juridical persons, locus, 35; when im- 
movables, 44-1; when movables, 48-I-II; lies for every right, 



INDEX. 369 

[References are to Articles.] 

75; must have legitimate interest, 76; against one who 
causes loss of rights, 79-80; for fraiid against creditors, 
against whom lies, 109; of absentee, how represented, 476; 
for dispossession, 503-504, 506; periods for, 507-509; to re- 
cover possession, prescription, 523; exercise of toy pledge 
creditor, 792; for eviction notice of, 1116; does not He 
when, 1117; against purchaser of property subject to 
retrovenda, 1142; premature, effect of, 1530; for undue or 
excessive amount, 1531; withdrawal before answer, 1532; of 
Divorce, see Divorce; see Various Titles; limitation of, see 
Prescription; prescription of, see Prescription. 

Active Solidarity. See Obligations, VII-II. 

Actual, or vested, right, defined, 74-III, and S. P. 

Acquisition, of Possession. See PoBseasion, II. 

Acquittances, of contract, form and validity, 1093. See Pay- 
ments, III. 

Adjoining owners and estates. See Visinage, rights of. 

Adjudications at auction, transcription, 532-III; of mortgaged 
property, when required, 822; valuation may be fixed for 822. 

Adjunction. See Confusion. See Specification. 

Administration of other's property, mortgage required when, 
827. 

Administration, powers of in general mandate, 1295; of co- 
ownership. See Joint Ownership, II; of decedent's estates, 
see Successions, Wills. 

Administrators, cannot piurchase property, when, 1133; cannot 
malie certain loans, 1249; of iSocieties, see Societies, 1382- 
1387; of decedent estates, see Succession, Wills; of other's 
business, see Agency, Mandates. 

Adoption, 368-378; valuation may be fixed for, 822; public in- 
strument required, 134-1; action for release, prescription, 
178-§ 6-XIII; relationship created by, 336; rights of succes- 
sion. Legitimate, I. See Relationship, V. 

Adultery: as ground of divorce, 317; connivance and condo- 
nation, 319. 

Advancement, donations by parents to children, 1171. 

Adverse possession of immovable, as acquisition, 550-653; of 
movable, acquisition by, 618-619. 

Advertisement of rewards and competition, 1612-1617. See 
Rewards. 



360 INDEX. 

[References are to Articles.] 

Affinity: by filiation, how proven, 184; who related by, 334; not 

extlngViiBhed, when, 335. 
After-acquired rights, effect of compromise, 1032-S. P. 
Agents: deceit by, as ground of nullity, liability, 96; incapacity 

of, annulment of acts, 147. See Mandates. See Unauthorized 

Agency, 'Gestors. 
Agricultural pledges: public instrument not required, 134-11; 

transcription of, 796; liens, 1566- V, 1567; of laborer, 1566- 

VIII. See Pledges, III. 
Aleatory Contracts: general rules, 1116-1121; hazards assumed 

toy buyer, 1118-1120; no alienation and price restored, when, 

1119-S. P.; when fraudulent, 1121. 
Alienation: of dowry property by husband, when, 292; forbidden 

except toy judicial order, 293; liability of judge for order 

when, 294; nullity may be demanded by whom, 295; husband 

liable for damages when, 296. 
Alienation: as loss of ownership, 589; special power required 

for, 1295-§ 1; clauses forbidding in wills, 1676-1677. 
Aliens. See Foreigners. 
Aliments, 396-405; who entitled to and required to provide, 396; 

reciprocal, order of obligation for, 397; descendants liable 

when, order, 398; conditions of demand and supply of, 399; 

extent of obligaition to provide, 400; judge may alter, when, 

401; obligation not transmissible, 402; pension or board in 

lieu of, 403; judge may determine manner, 403-S. P.; right 

to not renounceable, 404; void marriage or illegitimacy, 

effect, 405; actions for, prescription, 178-§ lO-I; to wife 

seeking annulment or divorce, 224; pensions in divorce, 320; 

exempt from execution, 1430; legacy of includes what, 1687; 

when payable, 1696. 
Alimony, 320-321. 
Alluvion, as mode of accession, 536-11; rules of acquisition by, 

538-540. 
Alternatives in obligations. See Obligations, VX. 
Analogy, construction of law by, Intr. 7. 
Animals: acquisition of ownership of, 593, see Hunting, Fishing; 

pledges of, 781- V, 784-788, see Pledges, III; liability of 

owner or keeper for damages, 1527; Partnerships in, see 

Societies, V., 1416-1423. 
Annuities. See Constitution of Income. 



INDEX. 361 

[References are to Articles.] 

Annulment of Marriage: see Marriage, annulment; of minor, 178, 
§4-11; of coerced spouse, 178, §5-1; of incapable, 178, §5-11; 
prescription, 178, §1; §4-1; effects on spouse at fault, 232; 
of unauthorized acts of husband and wife, 239, 252; of 
partition when, 1805. See Titles of Various Acts. See 
Nullity, Void Juridical Acts. 

Anonymous Societies: See Societies; by what law governed, 1364. 

Antenuptial Contracts: public instrument required, 134-1; when 
lawful, 256; such agreement void when, 256-iS. P.-257; effect 
of invalidity, 258; registry of essential, 261; reversion of 
dowry stipulated, 283. See Marriage, IX-1. 

Antenuptial Gifts, 312-314; excluded from community, 262- 
VIII-IX. 

Antichresis: is real right, 674-VIII; thing subject liable for 
obligations, 755; who -only can constitute, 756; what subject 
to, 756; right of retention by crediitor, 760-765; requisites of 
contract, 761; maturity of debt for defaults, 762; effect as 
to interest, 763; retention after matm-ity of debt, 765; how 
and by whom constituted, 805; conditions which may be 
stipulated, 805-§§l-2; modes of enjoying, 806; responsibility 
for deterioration and fruits, 807; rights of creditor against 
third persons, 808; loss of preferences when, 808-§§ 1-2. 

Application of Payments. See Payment, X. 

Appointment of Heirs, 1664. See Wills, VI. 

Appraisement, of mortgaged property dispensed with, when, 818. 

Apprehension, of thing confers possession, 493. 

Appropriation. See Occupation. 

Approval: sales upon, 1144-1148; nature of condition, 1144; 
applies to what sales, 1144-S. P.; obligations of buyer pend- 
ing approval, 1145; sale perfected when, 1146; when no 
time stipulated, notification, 1147; nature of right, 1148. 

Arbitration, 1037-1048; who may arbitrate, what subject to, 1037; 
kinds of arbitration, how effected, 1038; requisites of arbi- 
tration agreement, 1038-1040; arbiters as judges, effect of 
decision, 1041; effect of disagreement, 1042; who may be 
ar'biter, 1043; procedure in arbitration, 1044; approval of 
sentence, execution, 1045; recourse to courts allowed when, 
1046; deposit of award or bond required, 1046-S. P.; penalty 
extinguished when, 1047; rules of compromise applicable, 
1047; as mode of proof, 136- VII; of coats between party 



362 INDEX, 

[References are to Articles.] 

owners, 644; power of not conferred in compromise, 1295- 
§2; liquidation of damages by, when, 1536-§ 1. 

Arbitrators, cannot purchase property, when, 1133-IV. 

Architects, actions for fees, prescription, 178-§ 7-1 V. See Build- 
ing Contracts, 1246. 

Artistic works and rights. See Literary, etc. Property. 

Ascendants, cannot be witnesses, when, 142-IV; when they may 
testify, 143; cannot sell to descendants, when, 1132; right of 
succession, see Succession, Legitimate, I. 

Assets, concealed. See Wills, XIX. 

Assignment: confers indirect possession when, 621; of emphy- 
teusis, notice, 688; of rights of usufruct, 717; notice, right 
of set-off, 1021; certain assignments prohibited, 1134; of 
lease, 1201-S. P.; of insurance indemnity, 1463-1464; of In- 
heritance, effect as acceptance, 1582. 

Assignees, of heir may req'uire partition, 1772-§ 1. 

Assignments of Credits, 1065-1070; credits may be assigned when, 
1065; assignment embraces accessories, 1066; requisites of 
valid assignment, 1067; mortgage credits, subrogation, 
rights of assignee, 1067-S. P.; exception of obligatory assign- 
ments, 1068; debtor must be notified; effect of knowledge, 
1069; tradition of title, effect on priority, 1070; discharge of 
debtor without notice, 1071; same, in case of several assign- 
ments, 1071; defenses available to debtor, 1072; simulation 
not available when, 1072; assignor responds for exist- 
ence of debt, 1073; not for solvency of debtor, when, 
1074; extent of resiponsibility, 1075; not responsible where 
assignment by force of law, 1076; effect of levy, payment 
without notice, 1077; rules apply to other kinds of assign- 
ments, 1078. 

Associations. See Companies, Civil. 

Attachment, of author's interest, 1361. 

Attempt to cause death, ground of divorce, 317-11. 

Auction sales: required for dowry property, when, 293;/- of 
minor's property, 427- VI, 429, 432; to be transcribed, 532-III; 
of lost things found, 608; of mortgaged property, when 
required, 815; who may bid, 816; of estate for partition, 
when, 1777. 

Authorization: necessary to validity of act, how proven, 132; of 



INDEX. 363 

[References are to Articles.] 

acts of minors req^iired, 154; of husband to wife required, 

when, 242-255. See Marriage, VIII-3. 
Authors, rights of, see Literary, etc., property; see Edition; 

rights of, are movables, 48-III; actions of, prescription, 178- 

§ 10- VII; special lien of, 1566-VII: 
Avulsion: as mode of accession, 536-III; rules of acqHilBltion by, 

541 ; action for damages, prescription, 178-§ 6-XI. 

B 

Bad Faith: as affecting marriage, 221; in possession, liabilities 

for, 513, 515, 517; in planting, building, etc., rules, 546-549; 

in adverse possession of immovable, 550-553; in assignments, 

effect, 1073. See Titles of Various Acts. 
Baggage: Hen of inn-keepers, etc., see Pledges, II; of travelers 

and guests, liability for, 1284-1285. 
Bankruptcy, see Creditors' Meetings; mortgages executed prior 

to void when, 823. 
Bars, in rivers, as forming alluvion, 538-540. 
Bastards. See Filiation; Illegitimacy. 
Bearer, obligations payable to bearer. See Securities Payable to 

Bearer. 
Beneficiary: of insurance, change of, 1471, 1473; who cannot be 

beneficiary, 1474. 
Benefit of Division. See Division, benefit of. 
Benefit of Order: in surety, effect of, 1491; obligation of surety 

claiming, Id'.S. P.; cannot be claimed, when, 1492. 
Benefit of Restitution. See Restitution. 
Benefits and improvements, lien for, 1566-III-IV; 1568. 
Better Buyer, pact of. See Sales, pact of better buyer. 
_Better Possession, defined, 507. 

Betting: See Gaming and Betting; Aleatory Contracts. 
Bilateral relationship, in successioln. See Succession, legiti- 
mate, I. 
Bills of Exchange, mandate to pay, 1317-11. 
Bill of Sale. See Escriptura. 

Birth: civil personality begins with, 4; registration of, 12. 
Birth Records, as evidence of status, 348-349. 
Blind Persons: cannot be witnesses, when, 142-11; cannot be 

witness to wills, 1650; right to make will, 1637. 



364 INDEX. 

[References are to Articles.] 

Bonds: See Security for Costs; surety, of securities, see Pledges, 
IV; of public debt, requisites of pledge, 789, see Pledges, III; 
actions to annul, prescription, 178-§ 9-I-b; as security for 
dowry, 297; for guardianship, 419; liability of judge for 
insufficient security, 420-421; of usufructuary, rules, 729- 
731; in substitution of legal mortgages, 820; for payment in 
case of insolvency, 1131. 

Books. See Edition. See Literary, etc., property. 

Boundary Lines. See Visinage, V. 

Building, as mode of accession. See Constructions and Planta- 
tions. 

Building Rights. See Visinage, VI. 

Buildings: are immovables, 43-11; are accessories, when, 61; 
materials, when movables or immovables, 49; damages 
caused by ruinous condition, 1628; for things falling or 
thrown from, 1529. 

Building liens, 1566-IV. 

By-Laws, of companies, to be registered, 18-19. 

O 

Calls, for unpaid stock subscriptions, when pledged, 798-799. 

Canalization, for irrigation, rights, 567. 

Cancellation: of servitude transcribed, 709, 711; of mortgage on 
land entitled to servitude, 712; of pledge contract, when 
and by whom, 801. See Various Titles. 

Capacity: civil, laws determining, Intr. 8; of juridical persons, 
national law governs, Intr. 21. 

C'aso Fortuito, in purchase and sale, 1127. See Various Titles. 

Cattle: partnerships, see Societies, V, 1416-1423; pledges of, 
without tradition, 769. See Pledges, III. 

Cause of debts, different as affecting set-off, 1015. 

Certified copies, as mode of proof, 137-139. 

Cessation, of incapacity, 9. 

Cession. See Assignment. 

Change of materials into new species. See Specification. 

Channel: abandoned, see Abandoned Channel; rights of land- 
owner extend to middle, 544. 

Chase. See Hunting. 

Children: support of in divorce, 321; custody of in divorce, 325- 
329. See Minors. 



INDEX. 365 

[References are to ArUcles.'\ 

Chirography Creditors, action to contest mortgages, 847. 

Choice: of alternatives, see Obligations; of thing, citation of 
creditor, 981. 

Citation, interrupts prescription, 172, 175. 

Civil Capacity, laws governing, Intr. 8. 

Civil Code: governs civil rights and obligations, 1; date of 
taking effect, 1806. 

Civil Companies. See Companies, civil; Societies. 

Civil Personality, begins at birth, 4. 

Civil Reparation. See Damages for Wrongful Acts. 

Civil Responsibility, of public juridical persons, 15. See Judges. 

Civil Rights: all men capable of, 2; natives and foreigners 
enjoy, 3. 

Clerks: actions for fees, prescription, 178-§6-VIII; cannot pur- 
chase property, when, 1133-IV; cannot be procurators, when, 
1325. 

Clothing, excluded from community, 263-IX. See Exemptions. 

Code, Civil, scope and effect of, 1; when takes effect, 1806. 

Codicils, 1651-1655. See Wills, IV. 

Coercion: as avoiding juridical acts, 98-101; defined, 98; ele- 
ments to be considered, 99; what is not, 100; by third person, 
when voidable, 101; liability for damages, 101-§2; annul- 
ment of marriage for, prescription, 178-§ 5-1, Id. § 9-V. 

Collaborators, in literary works, rights, 653. 

Collaterals: who are, 331; computation of degrees, 333; ex- 
cluded from inheritance by omission, 1725; rights of suc- 
cession. See Succession, legitimate, I. 

Collective things, defined, 54-11; when collectively extinguished, 
55; subrogation of value, 56. 

Collations. See Wills, XX. 

Commerce, things out of, defined, 69. 

Commissory Pact, 1163. 

Commixture. See Confusion. See Specification. 

Commodatum. See Loans, Sub-Tit. Commodatum. 

Community of property. See Marriage, IX. 

Commlinity: dissolved when, 267; effect of dissolution, 268. 

Companies, Civil: are private juridical persons, 16; distinct 
from members, 20; must be constituted in writing and regis- 
tered, 16 § 1; constitutive acts, contracts, etc., must be 
registered, 18-19; certain ones to be authorized by Federal or 



366 INDSSZ. 

IReferences are to Articles.'] 

State government, 20-§l; effect of failure to register, 20-12; 
existence ended, how, 21; effects of dissolution, 22-23; liabil- 
ity for employes, when, 1522-1523. See Juridical Persons, 
Soclerties. 

Compensation. See Set-Off. 

Compensation of guardians, amount and how fixed, 431. See 
Various Titles Involving Services. 

Competency, of court or judge, governed by lex loci, Jntr. 15. 

Competitions, for public works, eftc, 1516-1517. See Rewards. 

Compound Interest, when allowed in damages, 1544. 

Compromise, 1025-1036; lawsuits may be settled by, 1025; void 
clauses nullify, 1026; invalid as to some, valid for others, 
1026-S. P.; striatly interpreted, effects of, 1027; requisites 
when effecting litigations, 1028; modes before suit, 1029; 
effects of compromise, rescinded when, 1030; effects as to 
third persons, 1031; sureties discharged when, 1031-§1; 
effect as to co-creditors, 1031-§ 2 ; effect as to co-debtors, 1031- 
§3; effect of eviction, damages, 1032; effect of after-acquired 
rights, 1032-S. P.; criminal actions not affected, 1033; con- 
ventional penalty admissible in, 1034; only relates to patri- 
monial rights, 1035; compromise void against judgment or 
where party without title, when, 1036; by minors, through 
guardian, 427-'IV; special power required for, 1295-§1; power 
does not inchide arbitration, 1295-§2; effect by drawings, 
1480. 

Concealed Assets. See Wills, XIX. 

Concubine, cannot be heir or legatee, 1719. 

Conditions, of Contract, 114-128; conditions, defined, 114; what 
is not a condition, 117; validity of conditions, 115; what con- 
ditions forbidden, 115-116; impossible conditions, effect, 116; 
clauses not conditions, 117; suspensive conditions, effect, 118; 
resolutive conditions, effects, 119; Id., how created and 
effects, 119 S. P.; fulfillment of condition prevented, or 
effected, by wrongful aot, effects, 120; preservation of object 
of condition, 121; subsequent conflicting dispositions, effect, 
122; initial term, effect on rights, 123-124; final term, effects, 
124; computation of term, 125; terms, in whose favor pre- 
sumed to be, 126; when performance demandable, 127; 
trusts or charges, effect of on rights, 128; prescription 



INDEX. 367 

[References are to Articles.] 

pending, 170; effect of fulfilment, 647-648; time of perform- 
ance, 953. See Obligations. 

Condonation, as affecting divorce, 319. 

Confessions: as mode of proof, 136-1; of mother not affect 
paternity, 346. 

Confusion, 615-617; ownership of things mixed or confused, 615; 
effect of bad faith on ownership, 616 ; when confusion results 
in specification, 617. See Merger. 

Conjugal Society. See Marriage. 

Connivance, as affecting divorce, 319. 

Consent: necessary to validity of act, how proven, 132; of wife 
required, when, 135; of husband required, when, 241; of 
debtor in surety contract, 1484. See Titles of Various Acts 
Requiring Judicial Supplial of. See Supplied Consent. 

Consignation, payment by. See Payment, VIII. 

Oonstituti, clause of, effect in certain pledges, 769. 

Constituto Possessorio: as means of acquisition, 494; possession 
lost by, 520-V; tradition presumed in, 620. 

Constitution of Income, 1424-1431; defined, how constituted, 
1424; effect of death or fatal illness, 1425; title of property 
charged, 1426; action for non-performance, 1427; when right 
to income vests, 1428; rights of joint beneficiaries, 1429; 
exemption of income from execution, 1430; Income charge 
is real right, 1431. 

Construction, of law, by analogy, Intr., 7. 

Constructions and Plantations, 545-549; as mode of accession, 
536-V; presumption as to ownership, 545; use of materials 
of others on own land, 546; planting or building on land of 
another, 547; effect of bad faith of both, 548; bad faith pre- 
sumed, when, 548-S. P.; where materials do not belong to 
user on another's land, 549; right of owner to indemnity, 
549-S. P. 

Consuls, Brazilian, intervention in wills, Intr. 14. 

Consumables, defined, 51. 

Contingent, or future, right, defined, 74-III, and S. P. 

Contribution, between joint owners, for expenses, 624. 

Conversion: of movables of absentee, 472; of property by tes- 
tator, 1723. 

Conveyances. See Register of Immovables; Transcription. 

Coiutracts: form of, what law governs, Intr. 11, 13; foreign, by 



368 INDEX. 

[References are to Articles.} 

what law governed, Intr. 13; of companies to be registered, 
18; requirements of registry, 19; may establish domicile for 
.purposes of suit, 42 ; presumption as to terms in, 126 ; without 
term, when performance due, 127; public instrument re- 
quired, when, 133-134. 141; in foreign language, must be 
translated, 140; conditional, fulfillment of conditions, effect, 
647-648; of purchase and sale, when perfected, 1126; ol 
surety in writing, 1483; in favor third persons, 1098-1100; 
who may reqliire performance, 1098; when right exclusive, 
1099; substitution of parties, 1100; substitution, how made, 
1100-S. P. See Special Kinds ot by Title. 
Contracts, 1079-1093— 

I. General Dispositions, 1079-1091: Consent may be express 

or tacit, 1079; offer of contract, effect, 1080; offer ceases 
to be obligatory, when, 1081; belated acceptance, duty 
of offerer, 1082; altered acceptance as new offer, 1083; 
tacit acceptance when, effect, 1084; withdrawal of accept- 
ance before received, 1085; by correspondence, acceptance 
effective when, 1086; contract made in place where 
proposed, 1087; retraction before signing public instru- 
ment, 1088; inheritance of living person not object of, 
1089; interpretation of beneficial contracts, 1090; im- 
possibility of performance, not invalidate, when, 1091. 
Offer, of contract. See Contracts, I. 

II. Bilateral Contracts, 1092-1093: Both parties must per- 
form, when, 1092; security may be required, when, 1092; 
rescission and damages for non-performance, 1092-S. P.; 
retraction, acquittance, form of, 1093. 

Copy, of documents, as mode of proof, 137-139. 

Copyright. See Edition. See Literary, etc.. Property; how ob- 
tained, 673. 

Co-Ownership. See Joint Ownership. 

Corporations. See Juridical Persons, Societies, Companies. 

Correspondence, contracts by, when perfected, 1086. 

Costs and expenses, when recoverable: upon eviction, 1109. See 
under various titles of Acts. 

Costs: judicial, deducted from price of mortgaged property, 1564; 
special lien for, 1566-1; general lien for, 1569-11. 

Courts, Brazilian, when competent, Intr., 15. 

Court oflicials, actions for fees, prescription, 178-§ 6-VIII. 



INDEX. 369 

[References are to Articles.l 

Credits, failure to allow in suit, effect, 1531-1532. 

Creditors: fraud against, 106-113; what constitutes, 106; who 
may iplead, Id.S. P. ; onerous contracts of debtor Told, when, 
107; purchaser from dnsolvent, how discharged, 108; action, 
against whom lies, 109; creditor paid before due, liability, 
110; guaranties presumed fraudulent, when, 111; when not 
so presumed, 112; effect of avoiding fraudulent acts, 113; 
may require heir to decide on acceptance of inheritance, 
1584; may accept in name of heir, 1586; of heir may require 
partition, 1770-§1; of deceased and heirs, preferences, 1799. 

Creditors' Meetings, 1654-1571; when to be held, 1554; what may 
be discussed, 1555; equal rights if no preferences, 1556; 
what titles create preferences, 1557; rights of mortgage 
and lien creditors, 1558; discharge of debtor by payment, 
1559; precedence among preferences, 1560; preference of 
real rights, 1651; prorata between equal liens, 1562; prop- 
erty affected by liens, 1563; costs and expenses deducted 
from price of sale, 1564; special and general liens defined, 
1565,; special lien attaches when, 1566; certain lien lost, when, 
1567; prorata for certain Hens, 1568; general Hen attaches, 
when, 1569; teachers have lien, 1570; precedence of Treasury 
claims, 1571. 

Crime: civil responsibility of .participants, 1521-V; conviction on 
affects civil liability how, 1525. 

Crops: pledges of, 781, see Pledges, III; failure of, effect on 
lease, 1215. 

Cuius solum est, rule stated, 526. 

Culpa, as element of damages, 1057. See various titles involving. 

Curators: must intervene in acts of minors, 154; cannot marry 
wards, when, 183-XV; to defend action for niillity of mar- 
riage, 222; special, appointed lor minor heir, when, 411-S. P.; 
cannot purchase property, when, 1133; cannot make certain 
loans, 1249; responsible for wrongful acts of pupils, when, 
1521-11. 

Curatorship, 446-462: 

I. General Disposiitions, 446-458: who subject to curatorship, 
446; who should demand interdiction, 447; by Ministerio 
Publico, when, 448; official defender to 'be appointed, 
449; proceedings by judge before judgment, 450; judge 
to determine extent of interdiction, 451; effect of sen- 



370 INDEX. 

[References are to Articles.] 

tence, appeal, 452; application of law to curatorship, 
453; who to act as curator, 454; duty of other spouse as 
curator, 455; deaf-mutes to be placed in institution, 456; 
insane to be interned, when, 457; authority of curator, 
extent, 458. 

II. Spendthrifts, 459-461: effect of curatorship, 459; when 
only subject to curatorship, 460; interdict removed, 
when, 461; nullity of acts, who may plead, 461-S. P. 

III. Unborn Perscftis, may have curator, who to act, 462, 
Prescription during curatorship, 168. 

Custody, of children in divorce, 325-329. 
Customs, contrary to Code repealed, 1807. 

D 

Damages: for causing loss of rights, 79; for negligence in letting 
things perish, 80; to property, actions, prescription, 178-§ 10- 
IX; for dispossession, 503-504; for wrongful building, plant- 
ing, etc., 546-549; for forced passage, 559-561; for account 
of servitude of waters, 564-568; for violations of building 
laws, 586; for infringement of copyright, 669-672; for failure 
to inscrSbe mortgages, 845; rate of exchange applicable to 
payment, 948; 'upon retraction of contract-offer, 1088; for 
rescission and for non^performance of contract, 1092 S. P.; 
for non-performance, measure of, 1536; for rescission of 
contract of hiring, 1193; for rescission of building contract, 
1247; by mandatory to principal, when, 1320; for non-per- 
formance of judicial, mandate, 1329. See Damages for 
Wrongful Acts; as related to penal clause, see Obligations, 
VIII; liquidated and unliquidated, see Liquidation of Obli- 
gations; Damages for Wrongful Acts, II. See Losses and 
Damages. See Titles of Various Acts and Contracts. 

Damages, for Breach of Contract, 1056-1058: Debtor failing to 
perform, liability, 1056; in unilateral and bilateral contracts, 
culpa and dolo, 1057; cases of accident and vis major, 1058; 
accident and vis major, defined, 1058-S. P. See Titles of 
Various Contracts. 

Damages for Wrongful Acts, 1518-1553: 

I. General Rules, 1518-1532; liability of wrongdoer for 
damages, 1518; accomplices jointly liable, Id.-S. P.; 



INDEX. 371 

[References are to Articles.] 

destruction of property in cases of danger, 1519-1520; 
right of loser to indemnity, 1519; recovery over for 
damages paid, 1520; liability of parents, masters, and 
others in representative capacity, 1521; rule of respon- 
deat superior, 1521-1522; industrial companies included, 
1522; proof of negligence required, when, 1523; recovery 
of damages paid for another, 1524; eivil independent of 
criminal liability, 1525; effect of criminal conviction, 
1525; survival and transmission of action, 1526; liability 
for animals, 1527; of owner of ruinous building, 1528; of 
house-owner for things falling or thrown, 1529; pre- 
mature suits, 1530; for undue or excessive amount, 
1531; effect of withdrawal before answer, 1532. 
II. Measure of Damages, 1537-1553: for homicides, 1537; for 
■wounding or injuries to health, 1538; loss or diminution 
of earning power, 1539-1540; for wrongful taking of prop- 
erty, 1541-1542; where possession is by third person, 
1542; valuation of property for indemnity, 1543; inter- 
est, simple and compound, allowed, 1544; want of pro- 
fessional skill, 1545; pharmacist liable with clerk,. 1546; 
damages for libel and slander, 1547; offenses against 
women, 1548-1549; offenses against personal liberty, 
1550; what considered offense against personal liberty, 
1551; who liable for wrongful imprisonment, 1552; when 
damages to be fixed by arbitration, 1553. 
Danger: acts in avoidance of not illicit, 160; public, expropria- 
tion in, 591. 
Dation in PaymeiDt. See Payment, XI. 
Days of Grace, effect of set-off, 1014. 
Deaf persons, cannot be witnesses, when, 142-11; right to make 

will, 1636. 
Deaf-mutes; when Incapable, 5-III; curatorship for, 446; see 
Curatorship, I; cannot make will, when, 1627; closed wills 
by, 1642; cannot be witnesses to wills, 1650. 
Death: terminates natural existence, 10; presumed as to absen- 
tees, 'when, 10, 481-482; of itwo or more persons, presumed 
simultaneous, 11; presumption of from absence, 481-483, see 
Absence; of principal in mandate, effects, 1321; of manda- 
tary, duty of heirs, 1322-1323; of member of company, 
effect, 1399-aV-il403„ il413; by duel or suicide, effect on 



372 INDEX. 

[References are to Articles.'] 

insurance, 1440; liability fori damages for, 1537, 1540, 1545; 
of heir, .effect on acceptan'ce of inheritance, 1585. 

Debtor: insolvent fraud against Creditors, 106-113; cannot pay 
creditor after notice, when, 794; 795; in obligations, see 
Obligations. 

Debts: Prescription pending maturity, 170; axition for under 
100$, prescription, 178-§ 7-II; Public, actions, prescription, 
178-1 10-VI; prior to marriage, excluded from community, 
263-VII, 270; of husband and wife before marriage, how 
paid, 264, 299; must be liquidated before execution, 1535; 
legacy or remission of in will, 1685-1686; decedent's, pay- 
ment of, 1796-1804; see Wills, XXT; payment of decedent's; 
see Wills,, XXI. 

Deceased, leaving Brazilian wife or children, law applicable, 
Intr. 14. 

Deceit (.Dolo): avoids juridical acts, when, 92; when accidental, 
effects, 93; silence, when deceitful, 94; of third person, 95; 
of the representative of one of the parties, liability, 96; of 
both parties, 97; annulment 'of contract for, prescription, 
178-1 9-V; as elements of damages, 1057, 1060. See Titles 
of Various Acts and Contracts. 

Declarations, in signed instrument, ipresumption, 131. 

Deeds. See Escriptura; Public ',Instruments. 

Default, of payment. See Payment VI. 

Defeasible Ownership, 647-648; effect of fulfillment of conditions 
or of term, 647; where title resolved by intervening caHise, 
action, 648. 

Defects: of things sold, effect of, 1138; rescission tor, see Rescis- 
sion for Vices and Defects. 

Defense: mecns of, lex fori governs, Intr. 15; acts in not illicit, 
160; national case of public necessity, 590-§ l-I; 591; of 
surety against creditors, 1502. 

Definitions, of purchase and sale, 1122. See Various Titles. 

Deflowering of wife, as ground of annulment of marriage, 219-III. 

Deformity, from wounding, damages, 1538, § 1; of woman, Id. § 2. 

Degree, scholastic, removes incapacity of minority, i9-IV. 

Degrees of relationship: collateral, 331; how computed, 333; of 
relationship as affecting succession; see Succession, legit- 
imate, I. 

Delay: surety may protest, 1498; effect to discbarge surety, 
1503-1; insolvency of debtor during, 1504. 



INDEX. 373 

[References are to Articles.'] 

Delimitation of estMes, rules concerning, 569-571. 
Delivery: risk of, in purchase and sale, 1128; in sales, to be 
made, when, 1130; of legacies, see Wills, VIII. See Tra- 
dition. 
Dentists, when lliable for damages,) 1645. 

Deposits, 1265-1281: Voluntary Deposit, 1265-1281; defined, 1265; 
gratuitous unless stipulated, Id-S. P.; duties of depositary, 
1266; closed packages must not be opened, 1267; must be 
returned on demand, wihen, 1268; where thing suspected 
stolen, 1268-1269; may require judicial deposit, when, 1270; 
where thing dispossessed, liability, 1271; obligation of heirs, 
1272; depositary teannot deny title, when, 1273; delivery to 
several owners, 1274; depositary cannot use deposit, 1275; 
when depositary bec^omes incapable, 1276; not liable for 
accidents, when, 1277; depositary liable for expenses, 1278; 
depositary may retain lien when, 1279; may require bond, 
Id.-S. P.; deposit of fungible things, rules, 1280; must be 
provedby writing, 1281; of price of sale, required when, 535-S. 
P.; of pledged cattle, when required, 786; judicial, of com- 
mon deposit, when, 1279-(S. P.; of thing due, as payment, see 
Payment, VIII. 

Depositaries, pledge creditor liable as, dlities, 774, 793. 

Descendants: cannot be witnesses, 142-IV; cann/ot buy from 
ascendants, when, 1132. 

Description: of mortgaged property required, 828; renewal of 
description irequired when, 830; who must require, 839. 

Destruction: of property to remove danger, 160; as loss of 
ownership, 1589. 

Deterioration. iSee Several Titles involving questiion. 

Dimensions, sales by, effect, 1136. 

Discharge of surety, when and how, 1499-1500 1503-1504. 

Disinheritance, see Wills, KV; action to maintain, prescription, 
178-§ 9-IV. 

Dispensation of Incapacities. See Consent, supplying. 

Disposable half of estate: rules concerning, 1721; how calcu- 
lated, 1722. See Wills. 

Disposal of things confers possession, 493-11. 

Dispossession. See Possession, III. 

Dissolution: of fcompanies, how effected, 21; effects of, 22-23; of 
community, how effected, 267; effects of, 268; of oonjugal 



■374 INDEX. 

[References are to Articles.] 

society, 315-324, see Marriage; of companies, see Societies, 
IV. See Various Titles. 

Disturbance of Possession. See Possession, III. 

Dlvisilble Things, defined, 62. ' 

Divisible OMigations, effect on penal clause, 926. See Obliga- 
tions, VI. 

Division: of undivided thing between Joint owners, 629-632, see 
Joint Ownership, I; of emphyteusis among several owners, 
690; of servitudes, 707. 

Division, Benefit of, between co-sureties, 1493. 

Divorce: terminates conjugal society, 315-III; who may maintain 
action, 316; grounds of divorce, 317; divorce by mutual con- 
sent, 318; adultery not ground, when, 319; entitled to ali- 
mony, when, 320; obligation to support children, 321; effect 
of divorce, 322; (parties may renew conjugal society, how, 
323; effect of reconciliation, 323-S. P.; wife guilty loses 
husband's name, 324; agreement for support of children, 
325; custody of children, who entitled, 326-327; amount of 
support, how fixed, 327-(S. P.; second marriage of mother, 
effect, 329; separation of bodies pending, 223; alimentos 
pending, 224. 

Do: Obligations to Do, see Obligations, III; Not to Do, see Obli- 
gations, IV. 

Documents, puiMic or private, as proof, 136-III. 

Dolo, as element of damages, 1057-1060; in aleatory cfontracts, 
1121; see Deceit. See Titles of Various Acts and Contracts. 

Domicile: law of, when applicable, Intr. 9; of natural person, 
defined, 31; several residences, 32; when no fixed residence, 
53; change of, how effected, 34; proof of intention, Id.S. P.; 
of juridical person, 35; may be established by charter or 
by-laws, Id.-IY; suits against governments, Jd.-§ 1, §2; of 
private juridical person. Id.-! 3; of foreign juridical person, 
/«?.-§ 4; of incapables, 36 ; of married women, M.-S. P., 251, 315; 
of public officials and employes, 37; of soldiers and sailors, 
38; of persons of the merchant marine, 39; of prisoners and 
persons baniS'hed, 40; of ministers, and consuls, 41; may be 
established in contracts, 42; right of husiband td fix and 
change, 233-11^; duty of wife to follow husband, 231, 234; 
secondary, for citations, permitted, 846-S. P.; of debtor, as 
place ofl payment, 952; |of deceased, succession opened at 
last, 1578; inventory and partition according to law of, 1770. 



INDEX. 375 

[References are to Articles.} 

Dominant and servient estates; see Vislnage, IV; see Servitudes. 
Dominion. See Ownership. 
Donations, 1165-1187. 

I. Contract defined, 1165; term for acceptance, presumption, 

1166; character of the donation, 1167; must be made 
how, 1168; dionation to person unborn, 1169; who may 
accept donations, 1170; when con&idered as advance- 
ment, 1171; periodical donations ended when, 1172; 
donations in view of marriage, 1173; stipulation for 
return of donation, when, 1174; void if excessive, 1175; 
void if exceeds disposable pnoperty, 1176; donation to 
paramour voidable, 1177; Joint donations, 1178; donor 
not liable for interest or eviction, 1179; encumbered 
donations, 1180. 

II. Revocation: 1181-1187; revoked fior ingratitude, 1181; 
for non-performance of charge, 1181-S. P.; right to re- 
nounce not waivable, 1182; nature of ingratitude de- 
fined, 1183; when revocation to be made, 1184; right 
does not pass to heirs, 1185; effects of revocation, 1186; 
when not revoked for ingratitude, 1187; subject to re- 
scission, when, 1101-.S. P.; brought into collation, when, 
1788-1795. See Wills, XX. 

Dowry: See Marriage, X; action to recover, prescription, 178-§ 9- 
I-c; Id. II, Id. Ill, 298; excluded from community, when, 
263-IV-V; when awarded as damages, 1538-§ 2, 1548; when 
brought into collation, 1788-1795. See Wills XX. 

Dramatic Works and Representation, 1359-1362. See Edition. 

Drawings as gaming contracts, 1480. 

Duels, effects on insurance, 1440. 

B 

Earnest Money: 1094-1097; effect of earnest, 1094; retraction de- 
spite earnest, effect, 1095; as beginning of payment, 1096; 
restoration of, 1095-1096; in cases of rescission or non-per- 
formance, 1097. 

Earning Capacity, decreased, as element of damages, 1539-1540. 

Easements. See Servitudes, Visinage. 

Eaves. See Visinage, VI. 

Edition: 1346-1362; definition of contract, 1346; undertakings by 
author, 1347; time of performance, penalty, 1348; author 



376 INDEX. 

IReferences are to Articles.] 

cannot dispose of when, 1349; changes in work, expenses, 
1350; new edition or reprint, conditions, 1351; right to de- 
mand new edition, 1352; compensation of author, arbitrar 
tion, 1353; editor to render accounts, 1354; number of 
copies of edition, 1355; number of editions, 1356; right to 
alter or change, 1357; price, how fixed, 1358; dramatic works, 
alterations in, 1359; time for representation, 1360; attach- 
ment of author's interest, 1361; manuscript cannot be 
divulged, when, 1362. 

Editors, rights of. See Literary, etc. Property, Edition. 

Educational Establishments, liability for scholars, when, 1521-IV, 
1523. 

Election. See Choice. 

Emancipation: removes incapacity of minority, when, 9-1; must 
be registered, 12-11. 

Embargoes, in building cases, 573, 582. 

Eminent Domain. See Expropriation. 

Emphyteusis: is real right, 674; nature of contract, how con- 
stituted, 678; duration of contract, distinguished from lease, 
679; what lands subject to emphyteusis, 680; transmission 
by inheritance, division, 681; taxes and charges, how i>aid, 
682; alienation, right of preference, 683; tenant's right of 
preference when, 684; right enforceable against purchaser, 
685; royalty on price in lieu of option, 686; unproductive 
property, abandonment, 687; donation or exchange of land, 
688; levy on land, right of landlord, 689; where land held 
by several, procedure, division, 690; abandonment, rights of 
creditors, 691; extinction of emphyteusis, 692; redemption 
of emphyteusis when, 693; sub-emphyteusis, rules, 694. 

Enclaved estates, rights of passage. See Visinage, III. 

Enclosm-es, rights of, 588. 

Engineers, actions for fees, prescription, 178, § 7-rv. 

Entailed Estates. See Emphyteusis. 

Entry, upon adjoining lands for repairs, etc., 587-588. 

EJrror: as avoiding juridical acts, defined, 86-91; as ground of 
nullity of contract, 147-11; annulment of contract for, pre- 
scription, 178-§ 9-V; renders marriage voidable, when, 
218-219; who may allege, 220; as basis of recovery of pay- 
ments, 965; in designation of heirs and legatees, 1670. 

Escheats: property of extinct companies, 22-S. P.; of estate of 



INDEX. 377 

[References are to Articles.} 

absentee, 483^. P.; of abandoned lands, when, 589-§2; of 
lost things when, 606; of vacant inheritances, 1594; right of 
Government, 1603-V; State succeeds when, 1619. 

Escriptura, expenses of in sales, 1129; of sale of immovable, tax 
record in, 1137. 

Estates. See Successions, Wills. 

Eviction: general rules, 1107-1117; obligation of warranty, 1107; 
rights of party evicted, 1108-1110; extent of damages, 1109; 
deterioration of thing, effect, 1110, 1111; value of improve- 
ments, 1112, 1113; partial eviction, remedies, 1114-1115; 
notice of eviction and suit, 1116 ; when no action lies, 1117 ; of 
thing given in payment, effect, 998; in case of compromise, 
effect, 1032; co-heirs must indemnify each other, when, 1802- 
1804. 

Evidence. See Proofs. 

Examinations and Inspections: as mode of proof, 136- VI; of goods 
bought on approval, see Sales. 

Excavations, draining waters and springs forbidden, 585. 

Exceptions, in laws, construction, Intr. 6. 

Exchange: rate of in case of payment, 947-948; rules of sale 
apply, when, 1164; expenses of instrument, 1164-1; certain 
exchanges prohibited, 1164-11. 

Exclusion of Heirs or Legatees: See Succession, in General, V; 
effected by omission, 1725. 

Excuses from guardianship, 414-417. See Guardianship, III. 

Execution: for debt. See Exemptions; of debtor before surety, 
1491. 

Executive action, to foreclose mortgage, 826. 

Executors: See Wills, XVII; cannot purchase property, when, 
1133; appointment by codicil, 1653; removal and loss of 
compensation, 1770-S. P. 

Exemptions from Execution: of gratuitous incomes, 1430; of 
alimentary pensions, 1430; of income of monteplos, 1430; 
of insurance benefits, 1475. See Homestead. 

Expenses: of delivery, In purchase and sale, 1129; of instrument 
of exchange, 1164; of medical treatment, as damages, 1537-1, 
1538, 1539; what not brought into collation, 1793. See Titles 
of Various Acts and Contracts. 

Experts: on question of insanity, 450; actions for fees, prescrip- 
tion, 178-§ 6-X. See Perltos. 



378 INDEX. 

[References are to Articles.'] 

Expropriation: in what cases allowed, 590-591; payment, 591; of 
literary, etc., works, 660; right of preference to re-purchase, 
1150. 

Extension of mortgages: how effected, 817. 

Extinction: of mandates, see Mandates; of mortgages, see Mort- 
gages, IV. See Titles of Various Acts and Contracts. 



P 

False Statements, in Insurance, 1443-1446. 
False Imprisonment, damages for, 1551-1552. 
Family expenses, general lien for, when, 1569-V. 
Family Property. See Homestead. 
Farming on Shares. See Societies, V. 

Fault: as element of damages, 1057; effects of. See Various Titles 
Involving Question. 

Federal Savings Bank, deposit of orphan's property in, 432-§l; 
withdrawal of funds from, 433. 

Fences, common use of, 571; right to construct, 588. 

Fiduciary Relations, prescription, 168-IV. 

Plllation, action to prove legitimacy, prescription, 178, § 6-XII; 
spurious, effect on alimentos, 495. 

Fills, in rivers, as forming alluvion, 538-540. 

Finds, 603-606: Thing found must be restored to owner, or deliv- 
ered to official, 603; reward and indemnity to finder, 604; 
damages against finder for deceit, 605; sale of unclaimed 
finds, disposition of proceeds, 606. See Treasure. 

Fire: burning of leased property, 1208; lessee liable, when, 1208; 
in case of several tenants, 1208-S. P. 

Fire Insurance. See Insurance. 

Fishing: as mode of acquisition, 593-1; general rules concern- 
ing, 599-602. 

Fixtures: when immovaibles, 43-11; are accessories, 61. 

Force, recovery of possession by, 502. 

Foreclosure of Mortgages, 815-816; nature of action, notice, 826; 
of railroad mortgage, 855. See Mortgages, Pledges, etc. 

Foreign: Countries, application of Brazillal law in, Intr. 1; 
promulgation of Brazilian laws in, Intr. 2; foreigners en- 



INDEX. 379 

[References are to ArUcles.'\ 

titled to all civil rights, 3; contracts, law governing, Intr. 13; 
courts, judgments, executed in Brazil, Intr. 16; laws, acts, 
judgments, effect in Brazil, Intr. 17; juridical persons, law 
governing capacity, Intr. 21; language, contracts in, must be 
translated, 140; in wills. See Wills; Juridical Persons, for- 
eign. 

Forgiveness, as affecting divorce, 319. 

Form: of legal process, lex fori governs, Intr. 15; of juridical 
acts or contracts; by what law governed, 11, 13; required 
form must be observed, 82; validity not dependent on, 129; 
when invalid for informality, 130; omission ground of nul- 
lity, 145. See Titles of Various Acts and Contracts. 

Fortuitous Event, as element in damages, 1058. For effects of 
see Titles of Various Acts and Contracts. 

Foundations: creation of, by what modes, 24; disposition of in- 
sufficient funds, 25; intervention of Public Ministry, 26; 
rules to be adapted and approved, 27; alteration of regula- 
tions, 28; contest concerning, 29; dissolution of, 30. 

Fraud. See Deceit (Dolo); against creditors, see Creditors, 
fraud against; annulment of contract for, prescription, 178, 
§ 9-V; avoids aleatory contracts, when, 1121. 

Fruits: rights of possessors to, 510-513; periods of accrual of 
right, 512; natural, industrial and civil, 512; not affected by 
incommunicabllity, when, 265; of common property enter 
into community, 271, V-VI; of dowry when due, 287; of 
dowry property, division, 306; rights of owner of thing, 528; 
falling on neighboring land, ownership, 557; of thing owned 
in common, how divided, 638; right to in obligations to 
give, 868; indemnity for upon eviction, 1109; to be brought 
into partition, 1778; in cases of usufruct, see Usufruct. 
See Various Titles. 

Fulfillment of conditions in contracts, 647-648. 

Funeral Expenses: reimbursement to gestor, 1342; as element of 
damages, 1537-1; general lien for, 1569-1; as debt of es- 
tate, 1797. 

Fungibles, defined, 50. 

Furnishers of Provisions, prescription of actions of, 178, § 5-V. 

Future debts, in surety contracts, 1485. 

Future, or contingent, right, defined, 74-III, and S. P. 

Future Things, sales of, see Aleatory Contracts. 



380 INDEX. 

[References are to Artiolee.'] 



Gaming and Betting, 1477-1480; gaming contract not obligatory, 
1477; losses paid not recoverable, when, 1477; extent of 
prohibition, /d.-S. P.; loans for gaming not recoverable, 1478; 
stock exchange operations, when gaming, 1479; drawings 
and lots, effect, 1480. See Aleatory Contracts. 

Generations, in computing relationsMp, 333. 

Gestion. See Unauthorized Agency; mandatary exceeding pow- 
ers, when, 1297. 

Gifts: action to revoke, prescription, 178-§ 6-1; to annul gift by 
adulterous spouse, 178h§7-VI; to aainul prohibited, gifts, 
178-§ 9-I-b; between husband and wife, when prohibited, 226; 
antenuptial excluded from community, when, 263-VIII-IX; 
antenuptial, 312-314. See Antenuptial Gifts, Marriage. 

Give: obligations to, certain thing. See Obligations, I; Uncer- 
tain Thing. iSee Obligations, II. 

Giving things In payment. See Payment, XI. 

Good Faith: as affecting marriage, 221; in possession, defined, 
490; presumed, when, ZtJ.^S. P.; lost, when, 491; rights of 
possessor, 511, 514, 516; in planting, building, etc., rules, 546- 
549; in adverse possession of immovables, 550-553; required 
in insurance, 1443-1446. See Titles of Various Acts and Con- 
tracts. 

Grace, days of, effect on set-off, 1014. 

Guaranty: of guardianship, 418-421. See Guardianship, IV; of 
solvency, 1482, 1498; extinguished by novation when, 1003; 
of hereditary shares, 1801-1804. See Wills, XXII. 

Guardians: cannot marry wards, when, 183-XV; penal liability 
for forbidden marriage, 226-S. P.; cannot purchase property, 
when, 1133; cannot make certain loans, 1249. 

Guardianship, 406-445: 

I. General Provisions, 406-412; when guardian to be ap- 
pointed, 406; by whom guardian named, 407; appoint- 
ment, how made, 407^8. P.; dependent upon patrio poder, 
when, 408; relatives to be guardians if none appointed, 
409; when appointed by judge, 410; more than one 
guardian, rules, 411; special curator for heir, when, 
411-S. P.; abandoned minors, disposition of, 412. 
II. Who cannot be guardians, 413. 



INDEX. 381 

[References are to Articles.] 

III. Excuses for declining to act, 414-417; who may be ex- 
cused, 414; strangers and relatives, 415; time for pre- 
senting excuse, 416; action of judge upon excuse, 417. 

IV. Security for guardianship, 418-421; guardian must give 
mortgage security, 418; other security, or relief from, 
when, 419; judge liable for deficient security, 420; for 
improper appointment, 421. 

V. Duties of guardian, 422-431; over person and property of 
minor, 422; property delivered upon inventory, 423; 
duties respecting person of minor, 424; expenses of sup- 
port, 425; duties as representative of minor, 426; duties 
to be authorized by judge, 427; acts forbidden to guar- 
dian, 428; immovables of minor, how sold, 429; debts of 
minor to guardian, 430; guardian liable for damages to 
ward, 431; entitled to compensation and reimbursement, 
431; compensation, how determined, 431-S. P. 
VI. Property of orphans, 432-433; property retained for sup- 
port and expenses, 432; other property to be sold, pro- 
ceeds invested, 432-^ 1 ; guardian liable for interest, 
when, 432-§ 2; withdrawal of funds when authorized, 433. 
VII. Accounts of guardianship, 434-441; obligation to render 
accounts, 434; annual accounts to be rendered, 435; 
biennial and special accounts, 436; action upon ac- 
counts by judge, 436-S. P.; final accounts of guardian- 
ship, 437; death or absence of guardian, effect, 438; en- 
titled to credit for expenses, 439; expense of accounting, 
440; interest on final balances, 441. 
VIII. Termination of guardianship, 442-445; condition of ward 
ceases, when, 442; functions of guardian cease, when, 
443; term of guardian two years, etc., 444; removal of 
guardian, when, 445; savages subject to, 6-S. P.; pre- 
scription during, 168; of absentees. See Absence, I. 
See Curatorship. 
Gutters. See Visinage, VI. 

H 

Habitation, is real right, 674-V; extent of use of house, 746; 
where several entitled to right, 747; rules of usufruct ap- 
ply, 748. 

Half, disposable, of estate. See Wills, XIT. 



382 INDEX, 

[References are to Articles.] 

Hazards. See Aleatory Contracts. See Risks. 

Health, nocive use of property prevented, 554-555; case of public 
necessity, 590; injuries to, damages, 1538-1540. 

Heirs: See Successions, Wills. Appointment of, 1664, see Wills, 
VI. Rights, what law governs, Intr. 14; when affected by 
prescription, 165; exclusion, action to enforce, prescription, 
178-§ 9-IV; take possession of antecessor, 495-496; liable for 
obligations of antecessor, 928; of mandatory, duties of to 
principal, 1322-1323; of surety, liability, 1501; transmission 
to of action for civil damages, 1526; cannot be witnesses to 
wills, 1650; uncertainty of In will, 1667-1669. 

Heirship, what law governs, Intr. 14. 

Hereditary rights. See Successions. 

Hiring. See Renting and Hiring. 

Holders: of securities payable to bearer. See Securities payable 
to bearer; holders, when not possessors, 487. 

Holding over, in contracts of hiring, 1195-1196. 

Holidays, in computations of time, 125-§ 1. 

Homestead: may be established, 70; duration of, 7(?.-S. P.; con- 
ditions of creation, indebtedness, 71; cannot be alienated or 
otherwise employed, 72; how created, registration, 73. 

Homicide, measure of damages for, 1527. 

Honor, wrongs to woman's, 1548-1549. 

Hotel-keepers: lien and remedy of, see Pledges, II; liability for 
guests when, 1521-IV, 1523;' liability for baggage, 1284-1286; 
prescription of actions of, 178-§ 5-V. 

House, liability of owner or occupant for damages, 1528-1529. 

Hunting: as mode of acquisition, 593-1; general rules governing, 
594-598. 

Husband and Wife: rights and duties of husband; see Marriage, 
VIII-2; rights and duties of wife, see Marriage, VIII-3; can- 
not be witnesses, 142-V; cannot be witnesses to wills, when, 
1650; prescription between, 168; action to annul unauthorized 
acts of wife, prescription, 178-§ 7-VII, §9; cannot make 
gifts, when, 226 duty of mutual assistance, 231-III; wife's 
right to husband's name, 240; loses right if condemned in 
divorce, 324; husband responsible for wife's property, 260; 
pre-marriage debts, how paid, 299; right of survivor on 
death of other, 1579; excluded as heir by omission to men- 
tion, 1725; must join in conveyances of property, 235, 242. 



INDEX. 383 

[References are to Articles.] 



Identity, error of, as ground of nullity, 91. 

Ignorance: of law, effect, Intr. 5; of crime, as ground of annul- 
ment of marriage, 219-11; as affecting good faith, 490-491; 
of defects of thing sold, effect, 1102-1103. 

illicit acts: are void, 145; what are Illicit acts, 159; liability for. 
159; proof and measure of damages, 159; what acts not 
illicit, 160; obligations arising from, excluded from com- 
munity, 263, 270. See Void Acts, Voidable Acts, Nullity. 

Illness, lien for expenses of last, 1569-IV. 

Ill-Treatment, as ground of divorce, 317-III. 

Immovables: what law governs, Intr. 10, 14; in Brazil, law ap- 
plicable, Intr. 13, 11; defined, 43-46; when may become mov- 
ables, 45; do not lose character when, 46; building materials, 
49; modes of acquiring ownership, 530; acquisition by ad- 
verse possession, 550-553; sales of by area or measurement, 
1136; sale of, must show taxes paid, 1137; register of. See 
Register of Immovables. 

Impediments, to marriage, penalty for failure to declare, 227- 
228. See Marriage. 

Impossible acts void, 145. 

Impossibility: of performance of contract, effect, 1091; of con- 
tract, effect on earnest money, 1097. 

Impotence, as proof against legitimacy, 342. 

Imprisonment, damages for wrongful, 1551-1552. 

Improvements: are accessories, when, 62; different kinds, 
voluptuary, useful and necessary, defined, 63; what are 
not, 64; reimbursement of husband, 307; reimbursement for 
by possessors, 516-519; recovery for upon eviction, 1112-1113; 
as affecting certain sales, 1139-'S. P.; in case of re-.purchase, 
1140; lien for, 1566-III-IV, 1568; upon bequeathed estate, 
1689. See Various Titles. 

Imprudence, liability for damages for, 159, 1545. 

Imputation of Payments. See Payments, X. 

Incapables: persons who are, absolute, 5; relative, 6; protection 
to, 8; must be represented, by whom, 84; acts of void, 145; 
annulment of marriage of, prescription, 178-§5-II; amounts 
paid cannot be recovered when, 157; action for prescription 
of rights, 164; against certain^ 165; annulment of contracts. 



384 INDBX. 

[References are to Articles.] 

prescription, 178-§ 9-V; right to make will, 1627-1628; can- 
not take by will when, 1720; partition of inheritance of, 
1774. 
Incapacity: See Incapables. See Minors, of Certain Classes, See 
the respective Titles; may be supplied, 7; protection ex- 
tended to, 8; cannot be pleaded in own favor, when, 83; of 
surety, effects, 1490. 
Income: See Constitution of Income; actions for, prescription, 
178-§ 10-11; sundry excluded from community, 263-1; con- 
stitute real right when, 674-VI; charged on immovables, 
749-754; subrogation of price of immovable when, 749; charge 
runs with land, regressive action of grantee, 750; redemp- 
tion of charge, how effected, 751; preference of creditor of 
income when, 752; charge follows inherited immovable, 754; 
legacy of, when payable, 1694. 
Increase of mortgage required, when, 819. See Accessions, Ac- 
cretion, Improvements, Various Titles. 
Indemnity, for wrongful acts. See Damages. 
Indignities, as ground for exclusion from heirship. See Succes- 
sions, in General, V. 
Indivisible Obligations: See Obligations, VI; effect on penal 

clause, 926; things, defined, 53. 
Industrial companies, liable for damages, when, 1522. 
Ingratitude: as ground for revoking donation, 1181-1187; is 
ground for revocation, 1181; right not renounceable, when, 
1182; what constitutes ingratitude, 1183; when right must 
be exercised, 1184; right not transmissible, 1185; effect of 
revocation, 1186; ingratitude not a ground, when, 1187. 
Inheritance: See Heirs, Successions, Wills; Is universality, 57; 
of absentee heirs, curator, 468; contracts regarding living 
person, 1089; legitimate, how calculated, 1722. 
Injunctions, in building cases, 573, 582. See Interdiction. 
Inn-keepers: lien and remedy of, see Pledges, II, prescription 
of actions of, 178-§ 5-V; liability for baggage, 1284-1286; lia- 
bility for guests, when, 1521-IV, 1523. 
Insane persons: are incapable, 5-II; cannot be witnesses, 142-1; 
curatorship for 446; see Curatorship, I; demand for Inter- 
diction of furious, 448; cannot make will, 1627; cannot be 
witnesses to will, 1650. 
Inscription: of mortgages, requisite, 828, 830, 831-848; see Mort- 



INDEX. 385 

[References are to Articles.'] 

gages, III; necessary to acquire real rights, 676; of after- 
acquired title of thing pledged, etc., effect, 756-S. P.; of as- 
signment of mortgage credit, 1067-.S. P. See Transcription, 
Register of Immovables, and Titles of Various Acts and Con- 
tracts. 
Insolvency: Proceedings, see Creditors' Meetings; fraud against, 
106-113; of grantor before transcription, effect, 535; failure 
to pay later mortgages, not, 813-S. P.; of purchaser before 
delivery, 1131; of debtor, benefit of order, 1492-III; of surety, 
effects, 1490; liability of co-surety, 1495-S. P. 
Inspections, as mode of proof, 136-VI. 

Installments: payment of on mortgage and pledge debts, effect, 
758; failure to pay matures debt, when, 762; effect as to in- 
terest, 763. 
Instrument, nullity of as affecting act, 152-S. P. See Public and 

Private Instruments. 
Insult, as ground of divorce, 317-III. 
Insurance, 1432-1476: 

I. General Dispositions, 1432-1448: contract defined, 1432; 
form and obligation of, 1433; requisites of policy, 1434; 
terms of policy must be lawful, 1435; policy cannot 
cover unlawful acts, 1436; value of thing insured, 1437; 
effect of excessive insurance, 1438; second insurance o! 
same property, 1437, 1439; insurance of life and limb 
1440; death by duel or suicide, 1440-S. P.; valuation of 
life, 1441; premium, rate of, tariff, 1442; good faith and 
veracity required, 1443; effect of false statements, 1444; 
liability of broker for deceit, 1445; insurance after risk 
past, 1446; policies, form and contents, 1447-1448. 
II. Obligations of the Insured, 1449-1457: premium payable, 
when, 1449; interest on premiums overdue, 1450; effect 
of arrears by insolvency, etc., 1451; premium payable in 
any event, 1452; premium not increased, when, 1453; 
insured must not increase risks, 1454; must advise in- 
surer of increase of risk, 1455; Judge to appraise facts 
equitably, 1456; Insured must give notice of loss, 1457. 
III. Obligations of the Insurer, 1458-1465: must pay losses, 
1458; not liable for losses when, 1459; for what risks 
liable, 1460; extent of liability assumed, 1461; bound by 
valuation, when, 1462; assignment of right to indem- 



386 INDEX. 

[References are to Articles.] 

nity, 1463; defenses against assignee, 1464; insolvency 
of insurer, effect, 1465. 
IV. Mutual Insurance, 1466-1470: how effected, 1466; con- 
tributions of members, 1467; quotas and assessments, 
1468-1470; disposition of profits, 1468; how pro-rated, 
1469-1670. 
V. Life Insurance, 1471-1476: definition and requisites, 
1471; premiums, how adjusted, 1471-S. P.; insurable in- 
terest in third person, 1472; substitution of beneficiary, 
1473; who cannot be beneficiary, 1474; exemption of in- 
surance money, 1475; special conditions of payment, 
1476. 
of usufructed property, rules regarding, 735; liens on thing 
lost attach to indemnity, 1558; prescription of actions con- 
cerning, 178-16-11; where cause arose outside Brazil, 
178-§ 7-V. See Premiums of Insurance. 
Intention, as rule of interpretation, 85. 

Interdiction of incapables: registry, 12-III; sentence of, inscrip- 
tion, 12-IV; of persons under curatorship. See Curatorship. 

Interest: legitimate, to maintain or defend action, 76; moral in- 
terest, defined, Id.-S. P.; actions for, prescription, 178-i 10- III; 
effect of anticipated maturity of debt, 763; presumed paid 
from receipt for principal, 944; payable first from unapplied 
payment, 993; as measure of damages, when, 1061; legal 
rate six per cent, 1062-1063; accrues and runs from what 
time, 1063; only by special clause, 1262; rate of interest, 
1262; may be compounded, 1262; unduly paid not recover- 
able, 1263; on sums advanced by mandatary, 1311; on over- 
due insurance premiums, 1450; insurable, what is, 1472; on 
payments by surety, 1497; on liquidated and unliquidated 
obligations, 1536 ; runs from date of citation, when, /d.-§ 2 ; 
when allowed in damages, 1544; on legacies when runs, 1693. 

Interested parties, cannot be witnesses, 142-IV. 

Interposed persons: cannot intervene in wills, 1720; what rela- 
tives are considered interposed, 1720. 

Interpretation: of language, intention governs, 85; of contracts, 
strict, when, 1090; of surety contract, 1483; of provisions 
of wills, 1666. 



INDEX. 387 

[References are to Articles.] 

Interruption, of prescription, 172-176. See Prescription. 

Intestate Suticession. iSee Succession, Legitimate. 

Invention. See Finds. 

Inventory: of decedent's estate. See Wills, XVIII; of ward's 
property by guardian, 423; judgments in to be transcribed, 
532-11; of property of usufruct, 729; by whom to be made, 
1579-§§ 2-3. See Dowry, Marriage, Various Titles. 

Islands: formation of as accession, 530-11, 536-1; rules for deter- 
mining ownership, 537. 



Joint Creditors, prescription between, 171, 176. 

Joint and Several Obligations. See Obligations, VII. 

Joint-owners, right of preference in sales, 1139. 

Joint Ownership, 623-646: 

I. Rights and Duties of Co-Owners, 623-634: Rights of use 
and disposition, 623; contribution to expenses and 
charges, 624; division in event of disagreement, 624-S. 
P.-; debts incurred in joint interest, 625; regressive ac- 
tion for reimbursement, 625; division In case of disagree- 
ment, 625-S. P.; debts contracted by all, how shared, 
626; liability for fruits and damages, 627; cannot alter 
without consent, 628; division may be demanded, 629; 
may agree to indivision, 629-S. P.; indivision limited to 
five years, 630; effect of partition, preliminary decree, 
631; sale for division, when, 632; right of pre-emption, 
632; strangers admitted only by consent, 633; co-owner 
may defend possession, 634. 
II. Administration of Co-Ownership, 635-641: Disposition to 
be agreed upon, 635; majority to decide, 635-§§l-2; 
preference in favor of co-owner, 636; majority how de- 
termined, 637; absolute majority, required, defined 
637-§ 1; decision in case of tie, 637-§2; division of 
fruits, 638; .presumption of equality, 639; co-owner pre- 
sumed mandatary, when, 640; rules of partition apply, 
when, 641. 
III. Party Walls, Fences, etc., 642-646: Rules applicable to 
joint-ownership, 642; right to separate estates, 643; 
right to acquire joint-interest, 643; price to be agreed 



388 INDEX. 

[References are to Artioles.l 

or arbitrated, 644; payment must be made before use, 
645. 
IV. Joint' Pasturage, rules goyerning, 646. 

Joint things, sale with defects, 1138. 

Joint Wrong-doers, liability, 1518, 1521-V. 

Judge: liability for performing marriage, when, 228; who may 
demand, 228-S. P.; lia/bility for failure to order subrogation, 
294; to appoint guardian, when, 410; for abandoned minors, 
412; liability for taking insufficient guardianship bond, 420- 
421; to choose curator, when, 454-§3; cannot purchase prop- 
erty, when, 1133-IV; cannot be procurators, when, 1325; 
supplying consent, of persons under incapacity, see Several 
Titles involving Want of Capactiy. 

Judgments: of foreign courts, execution in Brazil, Intr. 16; must 
be transcribed, 532. 

Juridical Acts: form of, requisite, 82; valid without regard to 
form, when, 129; when invalid for informality, 130; decla- 
rations of fact in, presumed true, when, 131; consent in, 
how proven, 132; requirement of public instrument, effect, 
133; when public instrument essential, 134; private instru- 
ments, effect of, 135; private instruments, how proven, /d.- 
S. P.; proof of juridical acts, modes, 136; certified copies as 
proof, 137; copies by public official from notes, 138; Id., 
when considered as public documents, 139; documents in 
foreign language, translations, 140; proof by witnesses only, 
in values under 1 conto, 141. See Void Juridical Acts. See 
titles of various Acts and Contracts. 

Juridical persons: foreign, recognized, Intr. 19; right to hold 
real property in Brazil, Intr. 20; Classification of, 13-16; 
public, 14; private, 16; civil responsibility of, 15; repre- 
sentation of, 17; private, existence commences with regis- 
tration and authorization, 18; requirements of registry, 19; 
have distinct existence from members, 20; private, extinc- 
tion and dissolution, when, 21; effects of, 22-23; may plead 
prescription, 163; as mutual insurers, 1466; liable for dam- 
ages, when, 1522. See Societies. 

Just possession, defined, 489. 

K 

Killinc. See Homicide; Damages for Wrongful Aeti. 



INDEX. 389 

[References are to Articles.'i 
L 

Laborers: actions for wages, prescription, 178-§ 10-V; special 
liens of, mechanics, 1566-IV; agricultural, Id. VIII. 

Lakes, rights of alluvion In, 539. 

Land: new, formed on shores, lakes and rivers. .See Islands; 
Alluvion; Avulsion; Abandoned Channel. See Immovables. 

Landlord and Tenant: Lien on tenant's property for rent. See 
Pledges, II. See Renting and Hiring. See Emphyteusis; 
Leases; Antichresis. 

Landmarks, rules concerning, 569-571. 

Language, in which will must be written: public will, 1632-.S. P.; 
closed wills, 1640; private wills, 1649; foreign, in contracts 
etc., to be translated, 140. 

Lapsing of legacies. See Wills, IX. 

Last illness, lien for expenses of, 1569-IV. 

Law: territorial operation of, Intr. 1; promulgation, when effec- 
tive, Intr. 2; retroactive, forbidden, Intr. 3; effect on vested 
rights, Intr. 3; repeal of, effects, Intr. 4; ignorance of, effect, 
Intr. 5; uncertain or silent, effect, Intr. 5; creating excep- 
tions, effect, Intr. 6; construction, by analogy, Intr. 7; of 
nationality, application, Intr. 8-9, 13; personal, of persons, 
application, Intr. 8; of juridical persons, 21; of domicile or 
residence, when applicable, Intr. 9; what law governs real 
and personal property, Intr. 10; governing form of acts and 
contracts, Intr. 11, 13; governing modes of proof, Intr. 12; 
national, of deceased, Intr. 14; of place, governs what acts, 
Intr. 15; of foreign country, not effective when, 17; applies 
to natives and foreigners alike, 3; protects rights of owner- 
ship, 524; contrary to Code, repealed, 1807. 

Law-suit, compromise of one decided, effect, 1036. 

Lawyers, actions for fees, prescription, 178-§ 6-X. 

Leases: See Renting and Hiring. See Emphyteusis. Indirect 
ownership not anuUed by, 486. 

Legacies. See Successions, Wills, VII-XI, XIV; Heirs. 

Legal Mortgages, as security for guardianship, 418-419. See 
Mortgages. 

Legal Pledges. See Pledges, II. 

Legatees: take possession of antecessor, 495; cannot be witness 
to wills, 1650; uncertainty of designation, 1667-1689. See 
Heirs; Successions; Wills. 



390 INDEX. 

[References are to Articles.'\ 

Legitimacy, action to coatest, prescription, 178-§i 3-4. See Re- 
lationship. 

Legitimate Heirs. See Succession, Wills. 

Legitimate Succession. See Succession Liegitimate. 

Legitimates: who are, 337; void or annulled marriage, effect, 337. 

Legitimation, by marriage, 229; rules of legitimation, 352-354. 

Letters: private, rights of publication, 671-S. P.; contracts by, 
1086. 

Levy, on credit or thing assigned, effect, 1077. 

Lex fori — Lex loci, governs what acts, Intr. 15. 

Liability of wrong-doers. See Damages for Wrongful Acts. See 
Losses and Damages. 

Libel, measure of damages for, 1547. 

Liberality, effect of excessive, 1175-1176. 

Liens: See Creditor's Meetings. Implied, see Pledges, II; of 
depositary, 1279; of mandatary, 1315; of Inn-keepers, livery- 
men, etc., see Pledges, II; general, for what claims allowed, 
1569; special, for what claims allowed, 1565-1566. 

Life Insurance. See Insurance, V. 

Limitation of Actions. See Prescription. 

Limited ownership, defined, 525. 

Liciuidation of Obligations, 1533-1536: liquid and determined 
defined, 1533; substituted performance, 1534; debts must be 
liquidated before execution, 1535; rules for liquidation, 1536; 
of obligations for Illicit Acts, see Damages for Wrongful 
Acts, II. 

Literary and Artistic Property: how regulated, 525-S. P.; exclu- 
sive rights of author, 649; rights of heirs and successors, 
649-§l; public property if no heirs, 649-§2; editors have 
like rights when, 650; author retains own rights, 650-S. P.; 
editor of anonymous work, 651; rights of real author, 651- 
S. P.; rights of translators, new version or translation, 652; 
rights of collaborators, 653; dissent among collaborators, 
654; author of musical composition, 655; reproducers of 
work by different process, 656; theatrical and musical works, 
reproduction, 657; authors of variations of musical work, 
658; rights of revision or modification, 659; journalistic 
articles, effect of assignment, 659-S. P.; expropriation for 
public utility, 660; public documents and archives, 661-662; 
commentaries and annotations, 663; compendiums and 
resumes, 664; permission to represent or rearrange, 665; 



INDEX. 391 

IBeferences are to Articles.'i 

paraphrases do not require permission, 665-S. P.; reproduc- 
tion of articles, certain matters not infringements, when, 
666; assignment and wrongful use of names, 667; writings 
forbidden by law, 668; damages for infringement of author's 
rights, 669-671; seizure of unlawful copies, 672; registry of 
copyright, effect, 673. See Edition. 

Liverymen, lien and remedy of. See Pledges, II. 

Loans: Commodatum, 1248-1265: Defined, 1248'; who dannJot 
make gratuitous loans, 1249; term of the loan, 1250; lender 
cannot interfere, when, 1250; duties of the borrower, 1251; 
borrower in default, liability, 1252; risks of thing loaned, 
1253; expenses incurred by borrower, 1254; more than one 
borrower, solidarity, 1255. Mutum, 1256-1264: defined — obli- 
gations of borrower, 1256; effect of loan — risks, 1257; loans 
of specie, how repaid, 1258; loans to minors, not recoverable, 
1259-1260; exceptions to non-recovery, 1260; security when 
debtor's solvency impaired, 1261; interest only by special 
agreement, rate of, 1262; undue interest not recoverable, 
1263; term of the loan, 1264. 

Location. See Renting and Hiring; Landlord and Tenant. 

Lodging-house keepers: liable for guests, when, 1521-IV, 1523; 
lien and remedy of, see Pledges, II. 

Loss: of profits, as damages, 1538-1539; of earning capacity and 
time, as damages, 1539; of possession, see Possession, IV; 
under insurance policy, see Insurance. 

Losses and Damages, 1059-1061: Defined, includes lost profits, 
1059; profits only those contemplated when contract made, 
1059-S. P.; direct and immediate result only, 1060; interest 
as only damages when, penalty, 1061; recoverable upon 
eviction, 1109. See Damages. 

Lost Movables, recovery of from holder, 521. 

Lost Things. See Finds. 

"~" M 

Maiming: damages for, 1538-§1; of woman. Id. §2. 
Majority: age at 21 years, 9; of joint ownership interests, how 

calculated, 637. 
Maker of Inventory. See Wills. 
Management. See Administration. 
Manuscripts. See Literary, etc. Property. 



392 INDEX. 

[References are to Articles.'] 

Mandatary: prescription against, 168-IV; co-owners are for 
others, 640; cannot purchase property, when, 1133. See 
Mandates. 
Mandates, 1288-1330: 

I. General Provisions, 1288-1299: Defined, how created, 
1288; who can give mandates, 1289; may be by private 
instrument, 1289; form and requisites of, private instru- 
ment, 1289-1 1; where made by several persons, 1289-§2; 
how substituted, 1289-§ 3; acknowledgment required, 
when, 1289-§4; may be tacit or verbal, 1290; presumed 
gratuitous, when, 1290-S. P.; verbal mandate not ad- 
mitted, when, 1291; acceptance of mandate, how shown, 
1292; presumed accepted, when, 1293; special and gen- 
eral mandates, when, 1294; effect of general mandate, 
1295; special clauses required, when, 1295-§§l-2; grantor 
may ratify or disallow, when, 1296; ratification, how 
expressed, 1296-S. P.; exceeding powers, effect, 1297; 
minors as mandataries, 1298; married woman as man- 
datary, 1299. 

II. Obligations of Mandatary, 1300-1308: Diligence required, 
1300; liability for faults of self or substitute, 1300-§§l-2; 
obligation to render accounts, and surrender advantages, 
1301; cannot set-off claims, 1302; must pay interest on 
sums misused, 1303; more than one mandatary, effect, 
1304; must exhibit mandate to third persons, 1305; 
actions by third persons, when, 1306; mandatary acting 
in own name, effects, 1307; duties In case of death, etc. 
of principal, 1308. 

III. Obligations of the Principal, 1309-1315: must comply 
with contract and advance funds, 1309; must pay re- 
muneration and expenses of mandatary, 1310; must pay 
interest on advances by mandatary, 1311; must re- 
imburse mandatary for losses, 1312; lial)ility to third 
parties, when, 1313; action over against mandatary, 
when, 1313; liability of joint principals, 1314; regressive 
action against co-principals, 1314; lien of mandatary 
for expenses, 1315. 

IV. Extinction of, 1316-1323: ceases and extinguished, when, 
1316; is irrevocable, when, 1317; notice must be given, 
1318; revocation by new appointment, 1319; renounce- 



INDEX. 393 

[References are to Articles.} 

ment by mandatary, notice of, 1320; effects of death of 
principal or other cause of extinction, 1321; death of 
mandatary, effects, 1322; duty of heirs of mandatary, 
1322-1323. 
V. Judicial, 1324-1330: how and upon whom conferred, 
1324; who may be procurators in court, 1325; general 
does not confer special powers, 1326; several attorneys, 
order of acting, 1327; substitution, notice, effect, 1328; 
excused only for good cause, 1329; obligations of attor- 
ney, how determined, 1330. 

Marriage: by what law governed, Intr. 8; removes incapacity 
of minority, when, 9-II; actions to annul, prescription, 
178; of deflowered wife, §1; by father of guardian, § 4- 
II ; by coerced spouse, § 5-1 ; of incapable, § 5-II ; by minor 
or his representative, §5-111; by deceived spouse, §7-1; 
void, effect on alimentos, 405; of woman offended, 1548. 

Marriage, 180-329: 

I. Preliminary Formalities, 180-182: Habilitation, requisite 
proofs, 180; publication of bans, when and how, 181; 
registration of, 182; publication dispensated, when, 
182-S. P. 

II. Impediments to Marriage, 183-188: Persons prohibited 
to marry, 183; proof of filiation, 184; minors, consent of 
parents, 185; disagreement of parents, how decided, 186; 
same, parents illegitimate, 186-S. P.; retraction of con- 
sent, when, 187; consent supplied by judge, when, 188. 

III. Interposing of Impediments, 189-191: Who may make 
objection, 189; how interposed, 189-S. P.; only relatives 
may object, when, 190; duty of oflScial regarding, 191; 
parties may contest, liability for wrongful objection, 
191-S. P. 

IV. Performance of Ceremony, 192-201: Time of ceremony, 
192; place of ceremony, 193; how performed, 194; record 
of, requisites, 195; authorization to be copied, 196; sus- 
pension of ceremony, 197; in case of sickness, 198; 
immediate performance of marriage, when, 199-200; 
witnesses required, 199-200; of prisoners and condemned 
persons, 201-S. P.; proofs of marriage, 202-206; by cer- 
tificate, when, 202; only evidence, when, 203; of foreign 



394 INDEX. 

[References are to Articles.'] 

marriage, 204; proof by judicial record, 205; presump- 
tion in favor of, 206. 
v. Proofs of Marriage, 202-206: By marriage certificate of 
registry, when, 202; if lost, by other proof, 202-S. P.; 
after death, what proof only allowed, 204; foreign mar- 
riage proved by foreign law, 204; marriage before con- 
sul, how proven, 204-S. P.; judicial decree as proof, 
when, 205; in case of doubt, presumption favors, 206. 
VI. Void and Voidable Marriages, 207-224: What marriages 
are void, 207-208; before Incompetent official, cured 
when, 208; action of nullity, when and by "whom, 208- 
S. P.; voidable marriages, what are, 209; who may 
demand annulment, 210; of incapable, ratification effect, 
211; of minors, who must sue, 212-213; marriage to 
avoid penalty, separation, 214; pregnancy cures voida- 
bility, 215; ratification upon majority, effect, 216; 
legitimacy of children not affected, 217; essential error 
of person renders voidable, 218; what is essential error, 
219; deceived spouse only can sue, 220; effect of good and 
bad faith in marriage, 221; nature of action, curator to 
defend, 222; separation of bodies required, 223; pro- 
visional aliments granted wife, 224. 
VII. Penal Provision, 225-228: Remarriage before making 
inventory of previous estate, 225; separation of estates 
obligatory when, gifts forbidden, 226; official of register 
liable for certain acts, 227; judge liable for certain acts, 
228; who may enforce liability, 228-S. P. 
VIII. Juridical Effects of Marriage, 229-329: 

1. General Provisions, 229-232: Creates family and 
legitimates children, 229; property regimen and effects, 
230; common duties of spouses, 231; effects of annulment 
for fault, 232. 

2. Husband, Rights and Duties, 233-239: Rights as head 
of household, 233; obligations cease if wife abandons, 
property of wife may be sequestered, when, 234; consent 
of wife required for certain acts, 235; dowries and gifts 
excepted, when, 236; consent of wife supplied by judge, 
when, 237; effect of supplial of consent, 238; annulment 
of acts without consent, 239. 

3. Wife, Rights and Duties, 240-255; Wife assumes name 



INDEX. 395 

[References are to Articles.] 

and assistance of husband, 240; reimbursement for ex- 
penses Incurred by husband, 241; consent of husband 
required for certain acts, 242; consent of husband how 
given, 243; consent revocable, 244; consent judicially 
supplied, when, 245; effect of supplial of consent, 245- 
S. P.; rights of wife engaged in business, 246; consent 
of husband presumed, when, 247; consent not required 
for certain acts, 248; such rights belong to wife and 
heirs, 249; regressive action against husband, 250; wife 
entitled to administer estate, when, 251; want of author- 
ization invalidates acts, when, 252; prescription of 
action of nullity, 252; ratification by husband, effects, 
252-S. P.; effect of authorized acts, 253-254; effects of 
annulment of unauthorized acts, 255; damages out of 
common property, when, 255-S. P. 
]X. Property Regimen, 256-313: 

1. General Provisions, 256-261: Antenuptial contracts, 
conditions, 256; what clauses prohibited, 257; universal 
community exists, when, 258; property acquired during 
marriage, 259; husband's responsibility for wife's prop- 
erty, 260; antenuptial agreements affecting third per- 
sons, 261. 

2. Universal Community, 262-268: See (1) General Provis- 
ions, supra: — What Included in universality, 262; what 
is excluded therefrom, 263; pre-existing debts, how paid, 
264; fruits not excluded, when, 265; nature of ownership 
and possession, 266; administration by wife, when, 266-S. 
P.; community dissolved, how, 267; effect on liability 
for debts, 268. 

3. Partial Community, 269-275: What property excluded, 
269-270; what property is included, 271; property ac- 
quired before marriage, 272; property to be described 
in agreement, 273; husband is administrator, 274; 
effects of husband's acts, 274-275. 

4. Separation of Estates, 276-277: Rights of spouses 
under separation, 276; obligations of wife for expenses, 
277. 

X. Dotal Regimen, 278-314: 

1. Constitution of Dowry, 278-288: Requisites of ante- 
nuptial agreement, 278; by whom and how dowry con- 



396 INDEX. 

[References are to Articles.^ 

stituted, 279; property included in dowry, 280; future 
property not embraced, when, 280-S. P. ; dowry cannot be 
Increased, 281; dowry constituted by strangers, 282; 
reversion of dowry upon dissolution, 283; dowry con- 
stituted by parents, shares, 285; liability of stranger 
for eviction, 285; fruits of dowry when due, 286; stipu- 
lations concerning income and property, 287; rules of 
partial community applicable, 288. 

2. Rights and Obligations of Husband respecting Dowry, 
289-299: Rights of husband during marriage, 289; pre- 
sumptions as to ownership, 290; immovables acquired 
from dowry, 291; husiband may dispose of property, 
when, 292; sale or encumbrance, how and when author- 
ized, 293; liability of judge for improper authorization, 
294; nullity of alienation, by whom demanded, 295; 
liability of husband for nullity, when, 296; security by 
husband for dowry, 297; prescription of dowry rights, 
298; rules regarding debts, 299. 

3. Restitution of the Dowry, 300-307: Restoration upon 
dissolution of society, 300; price of fungibles, when de- 
mandable, 301; restoration of consumable things, 302; 
wife may retain certain articles, 303; restoration in case 
of depreciation, 304; in case of usufruct, 304-S. P.; 
presumption as to receipt of dowry, 305; division of 
dotal fruits and crops, 306; indemnity for improvements 
and damages, 307; heirs liable for same, when, 307-S. P. 

4. Separation and Administration by Wife, 308-309: Sep- 
aration may be required, when, 308; effects of order of 
separation, 309; conversion of property, 309; registry of 
sentence of separation, 309-S. P. 

5. Paraphernal Property, 310-311: Rights of wife to, 
310; cannot alienate immovables, 310; restoration of 
fruits, when, 311. 

XI. Antenuptial Gifts, 312-314: Stipulations for and limi- 
tations on, 312; gifts by third persons, 313; gifts causa 
mortis, effects, 314; such gift lapses, when, 314-S. P. 
XII. Dissolution of Society and Protection of Children, 315- 
329: 

1. Dissolution of Conjugal Society, 315-324: Causes ter- 
minating society, 315; presumption of death not appli- 



INDEX. 397 

[References are to Articles.] 

cable, 315-iS. P.; action of divorce, how exercised, 316; 
causes for divorce, 317; divorce by mutual consent, 318; 
adultery as cause of divorce, 319; presumption of for- 
giveness, 319-S. P.; husband must provide aliments, 
when, 320; amount of aliments, 320; support of children, 
amount, 321; effect of sentence of divorce, 322; re-estab- 
lishment of society after divorce, effects, 323; use of 
husband's name forfeited, when, 324. 
2. Protection of Children, 326-329: Custody by consent, 
when, 325; innocent party entitled to, when, 326; cus- 
tody in other cases, 326-§§ 1-2; judge may provide dif- 
ferently, when, 327; judge to fix amount of support, 327- 
S. P.; in cases of annulment, 328; remarriage of mother, 
effects, 329. 
Married Women: incapacity of, 6-II; domicile of, 36-S. P., 251, 
315; legal mortgage for husband's management, 827; can 
act as mandatary, when, 1299; Rights and Duties, see Mar- 
riage, VIII. See Husband and Wife. 
Margins, stock operations on, are gambling, 1479. 
Masses, expenses of as debt of estate, 1797. 
Master, liable for acts of servant, when, 1521-III, 1523. 
Materials: of another on own land or vice versa, rules, 546-549; 

special lien for, 1566-IV. 
Maturity: of debts for defaults of debtor, 762; effect as to inter- 
est, 763; of pledge debt, for unpaid stock calls, 798-799; of 
second mortgage, effect on first, 813; of debt before due, 
when, 954. 
Measure, payment by, of what place, 949. 
Measure of Damages: See Damages for Wrongful Acts, II; for 

non^performance of contract, 1536. 
Mechanics' Liens, 1566-IV. 

Medical treatment, element of damages, 1537-1, 1538, 1539. 
Mercantile companies, governed by commercial laws, 16-§ 2. 
Merger: of estates extinguishes servitude, 710-1; as extinction of 
pledge, 802-V; partial merger, effect, 804; obligation ex- 
tinguished by merger, 1049; entire or partial merger, 1050; 
effect as to solidary obligations, 1051; effect of extinction 
of merger, 1052. 
Midwives, when liable for damages, 1645. 
Military persons, domicile of, 38; prescription against, 169. 



398 INDEX. 

[References are to Articles.] 

Minerals, are accessories, 61. 

Mines: are of public utility, 590-§2-IV; are subject to mortgage, 
810- VI; usufruct of by agreement, 725. 

Ministerio Publico, intervention in curatorship. See Curator- 
ship, I. 

Ministers and Consuls, domicile, 41. 

Minority, when ceases, 9. 

Minors: under 16, incapable, 5-1; over 16, incapacity. 6-1; under 
16, cannot be witnesses, 142-III; acts of, when voidable, 164; 
cannot invoke own incapacity, when, 155; liable for illicit 
acts, 156; action to recover immovables, prescription, 178- 
§6-111; action by heirs of minor, Id.-TV; marriage of, pro- 
hibited, 183, XI-XII, 185; consent to, Id. 186; to avoid pen- 
alties, 214; not voidable, when, 215; sale of property of, 
426-IV, 427-VI, 432; actions by, through guardian, 427-VII; 
when to be in guardianship, 406; loans to not recoverable, 
1259-1260; may act as mandatary, when, 1298; actions 
against by principal, 1298; cannot be procurators, when, 
1325; parents responsible for wrongful acts, when, 1521-1; 
cannot make will, when, 1627; cannot be witness to wills, 
when, 1650; partition of inheritance of, 1774; annulment of 
marriage, prescription, see Marriage, actions to annul. See 
Guardianship; Curatorship. 

Misrepresentations, in insurance, 1443-1446. 

Mistake. See Error. Payments by recovery, see Payments, VIII. 

Modalities of Contracts. See Conditions of Contracts. 

Money, payment in what kind, rules, 947. 

Montepios, exemption of income, 1430. 

Month: defined, 125-§3; middle-of-month, defined, Zd.-§ 2. 

Mortgages: law applicable to, Intr. 13; consent of wife required, 
when, 235; consent of husband required when, 242; consent 
supplied by judge, when, 237-239, 242-245; as security for 
dowry, 297; as security for guardianship, 418-419; constitute 
real right, 674-IX; of land enjoying servitude, cancellation, 
712; thing subject to liable for obligation, 755; who only 
can constitute, 756; what subject to, 756; requisites of con- 
tract, 761; maturity of debt for defaults, 762; retention of 
thing after maturity of debt, 765; personal liability for 
unsatisfied balance, 767. 



INDEX. 899 

[References are to Articles.] 

Mortgages, 809-855: 

I. General Dispositions, 809-826: Civil law governs mort- 
gages and mortgage actions, 809; things subject to 
mortgage, 810; accessions and prior encumbrances, 811; 
several mortgages on same property, 812; iirst not af- 
fected by later mortgages, 813; exception of insolvency, 
813; failure to pay later mortgages not insolvency, 813- 
S. P.; rigMs of later mortgagee to redeem, 814; pro- 
ceedings for redemption, 814-§1; subrogation to rights 
of previous mortgage, 814-§2; redemption by acquirer 
of property, 815; proceedings to redeem, 815-§1; rights 
of creditor, auction, 815-§2; who may bid at auction, 
816; price of redemption, deposit, 816-§1; failure to 
give notice, effects, 816-§2; levy and sale, when, 816-§3; 
minimum of appraisement, 816-§3; regressive action of 
acquirer, when, 816-§ 4; redemption of legal mortgages, 
816-§5; extension and renewal of mortgage, when and 
how, 817; appraised value stipulated, effect, 818; time 
for redemption, 818; legal mortgages to be increased, 
when, 819; legal mortgage substituted by other security, 
820; bankruptcy or insolvency, effects, 821; mortgages 
preceding bankruptcy void, when, 823; rights of exe- 
cution creditors, 824; ships subject to mortgage, 825; 
rules governing mortgage of ships, 825; mortgage suits 
by executive action, 826; sale void without notice to 
creditors, 826 . 
II. Legal Mortgages, 827-830: Law grants mortgage, when, 
827; invglid against third persons, when, 828; priorities 
of satisfaction, when, 829; inscription good how long, 
renewal, 830. 
III. Inscription of Mortgages, 831-848: Must be registered, 
place, 831; necessary registers to be kept, 832; order of 
Inscription, priorities, 833; proceedings in case of doubt, 
834-835; several mortgages, requisites of registry, 836; 
several mortgages, proceedings of registration, 837; 
right to require inscription, 838; who obliged to require 
inscription, 838-842; duty in guardianship and curator- 
ship, 841; interested persons or Ministerio Publico may 
act, 843; debtors of Public Treasury, who to register, 
844; liability for failure to register, 845; requisites of 



400 INDEX. 

[References are to Articles.] 

inscription, 846; action to contest prior inscription, 847; 
inscriptions effective from date as to third persons, 848; 
mortgage effective . between parties without Inscription, 
848. 
IV. Extinction of Mortgages, 849-851: Modes of extinction, 
849; effective from notation, when, 850; cancellation, 
how effected, 851. 
V. Railroad Mortgages, 852-855: Place of registry, 852; 
operation not to be affected, 853; scope of mortgage, 
rights of creditors, 854; foreclosure, preferences of Gov- 
ernment, 855; special power required for, 1295-11. 
Mortgage liens. See Creditors' Meetings. 
Mourning expenses, general lien for, 1569-III. 
Movables; what law governs, Intr. 10; defined, 47-49; do not 
lose character, when, 49; modes of acquisition, see Occupa- 
tion, and other Titles. 
Musical Composition. See Literary, etc. Property. 
Mutual Insurance. See Insurance, IV. 

N 

National Law: of deceased persons, when applicable, Intr. 14; 
governs juridical persons, Intr. 21. 

Nationality: law of, when applicable, Intr. 8-9, 13; Dual nation- 
ality, law applicable, Intr. 10. 

Naval Persons: domicile of, 38-S. P.; prescription against, 169; 
wills of, 1656-1659; see Wills. 

Necessary: Improvements, defined, 63-§3; inheritance property 
of excluded froan community, when, 263-XI; deposits, 1282- 
1287; defined, 1282; governed by what rules, 1283; of bag- 
gage of travelers, etc., 1284-1285; remuneration covered by 
price, when, 1286; penalty for failure to return, 1287. 

Necessary Heirs. See Succession, "Wills. 

Necessity, of family in case of use, 742-744. 

Neglect, as ground of disinheritance, 1744-1745. 

Negligence: liability to damages for, 159; when necessary to 
civil damages, 1523; professional, damages for, 1545. See 
Damages. 

Neighboring Estates. See Vislnage. 

Nocive use of property, rules, 554-555. 



INDEX. 401 

[References are to Articles.] 

Non-fungibles, defined, 50. 

Non-performance of Obligations, 960. See Payment, VI. 

Non-residents, security for judicial costs, Intr. 18. 

Non-'user, extinguishes servitude, when, 710-III. 

Notaries, actions for fees, prescription, 178-§ 6-Vin. 

Notice: of assignment, to debtor requisite, 1069-1071; payment 
without notice of levy, 1077; of levy on credits, 1077; of suit 
for eviction, 1116; to quit leased property, 1209; by lessee 
of rustic estate, 1213; to principal of substitution of man- 
date, 1328. 

Novation, 999-1008: Novation occurs when, 999; when not In- 
tended, effect, 1000; substitute of debtor, how effected, 1001; 
Insolvency of substitute, effects, 1002; effects of novation, 
1003; reservations in mortgages, etc., 1004; effects between 
creditor and joint debtor, 1005; effect on surety, 1006; effect 
on voidable obligations, 1008. 

Nullity: Of juridical acts, for what causes, 86-91; acts are void, 
when, 145; who may allege nullity, 146; must be declared 
by judge, 146-S. P., 151; voidable acts, what are, 147; rati- 
fication of, effects, 148; ratification, how expressed, 149; 
effect of partial performance, 150; waiver of actions 
and defenses by ratification, 151; must be declared 
by judgment, 152; who must plead nullity, 152; 
nullity of Instrument not effects act, when, 152-S. P.; 
partial nullity of separable acts, 153; principal and acces- 
sory obligations, 153; obligations of minors, 154; minor 
cannot avail of when, 155; minor obligated for Illicit acts, 
156; recovery of amount paid to Incapable, 157; restoration 
of prior status or Indemnity, 158; of gaming contracts, 1477- 
1479; of partition, when and how adjudged, 1805; of mar- 
riage, see Marriage, void and voidable. See Void Acts and 
Voidable Acts. 

Nuncupative wills, when allowed, 1663. 

O 

Obligations: Of law, no excuse, Intr. 5; contracted In foreign 
country, law applicable, Intr. 13-11; foreign or domestic, 
competency of courts, Intr. 15; civil, all men capable of, 2; 
when are movables, 48-11; must be liquidated before execu- 
tion, 1535. 



402 INDEX. 

[References are to Articles,] 

Obligations, 863-895: 

I. Obligations to Give a Certain Thing, 863-873: Creditor 
not required to receive different thing, 863; thing em- 
braces accessory, when, 864; effect of loss of thing, 865; 
effect of deterioration, 866; same where debtor at fault, 
867; title before tradition, increases and fruits, 868; 
restoration, effects of loss, 869; loss through fault of 
debtor, 870; effects of deterioration, 871; improvement 
or increase, effects, 872-873; right to fruits, 873-S. P. 
II. Obligation to Give Uncertain Thing, 874-877: Uncertain 
thing, how designated, 874; choice of things, medium 
quality, 875; rules applicable when choice made, 876; 
loss or deterioration before choice, 877. 

III. Obligations to Do, 878-881: Debtor must perform per- 
sonally, 878; impossibility of performance, effect, 879; 
liability for damages for refusal, 880; performance by 
third person or damages, 881. 

IV. Obligations Not to Do, 882-883: Impossibility of non- 
performance, effect, 882; liability for doing act, 883. 

V. Alternative Obligations, 884-888; Performance of alter- 
natives, choice, 884; only one alternative, when, 884-§l; 
annual prestations annual choice, 884-§ 2 ; where one 
alternative impossible other remains, 885; liability for 
non-performance when impossible, 886; same where one 
only impossible, 887; effect of fault of debtor, 887; all 
impossible without fault, effect, 888. 
VI. Divisible and Indivisible Obligations, 889-895: Partial 
performance not permitted, when, 889; several creditors 
or debtors, effect, 890 ; each debtor liable for whole, when, 
891; subrogation of debtor paying all, 891-S. P.; plu- 
rality of creditors, effect, 892; debtor discharged how, 
892-S. P.; rights of co-creditors where one paid, 893; 
remission, etc., of debt by one creditor, effect, 894; 
obligation settled by damages, divisibility, 895; liability 
of several debtors, 895-§§ 1-2. 
VII. Solidarity of Obligations, 896-915: 

1. General Dispositions, 896-897: Solidarity not presumed, 
how created, 896; definition of term, 896-S. P.; condi- 
tional and unconditional solidarity, 897. 

2. Active Solidarity, 898-903: Right to demand entire 



INDEX. 403 

[References are to Articles.'] 

performance, 898; debtor may pay any creditor, ■when, 
899; effect of such payment, novation, etc., 900; rights 
of heirs of creditors, 901; payment of damages, interest, 
902; creditor receiving payment, etc., must distribute, 
903. 

3. Passive Solidarity, 904-915: All or any debtors liable, 
effects, 904; liability of heirs of debtor, effects, 905; par- 
tial payment by one, effects, 906; special clauses affect 
only those consenting, 907; impossibility of performance, 
effects, 908; liability for interest, effects, 909; suit 
against one, others liable, 910; what defenses may be 
pleaded, effect, 911; creditor may waive solidarity, 
effect, 912; payment by one, contribution by others, 913; 
insolvency, effect, presumption of equality, 913; who 
must contribute for insolvent, 914; reimbursement to 
one paying other's debt, 915. 
VIII. Penal Clauses, in Obligations, 916-927: Penal clause how 
stipulated, 916; clause may relate to what, 917; becomes 
alternative obligation, when, 918; penalty and perform- 
ance required, when, 919; penalty not to exceed prin- 
cipal, 920; penalty becomes effective, when, 921; nullity 
of obligation annuls penalty, 922; resolution of obliga- 
tion and penalty, 923; penalty reduced on part per- 
formance, 924; indivisible obligations, effect of penal 
clause, 925; regressive action against one at fault, 925- 
S. P.; divisible obligations, who liable, and how, 926; 
penalty independent of damage, 927; plea of excessive 
unavailing, 927. 
IX. Effects of Obligations, 928-929: Heirs of obligee liable, 
when, 928; obligation for promised. act of third person, 929. 

Occupant: of house, liable for damages for thing falling or 
thrown, 1529. 

Occupation: as mode of acquiring movables, , 493, 592; effect of 
abandonment, 592-S. P.; what things subject to appropria- 
tion, 593; 

Offer: see Contracts; of Reward, see Rewards. 

Officials, who cannot be heirs or legatees, 1719. 

Omissions: deceitful, as ground of nullity, 94; of solemnities as 
avoiding acts, 145. 

Option. See Choice. 



404 INDEX. 

[References are to Articles.] 

Oral evidence, when not admitted as proof, 141; mandate, 1290. 

Order: securities payable to creditor or order, 1510; benefit of, 
see Benefit of Order; of Succession, see Succession, Legit- 
imate, I. 

Orphans: property of, 432-433; of absentee parent, 484. 

Out of Commerce, what is, 69. 

Owner: of animals, liable for damages caused, 1527; of building, 
liability for damages caused by ruinous condition, 1528. 

Ownership: Of community property, 266; indicated by- possession, 
when, 485; does not affect right of possession, 505; trans- 
ferred only by tradition, 620. 

I. Ownership in General, 524-529: Rights of ownership, 524; 

literary and artistic property, rules, 524-S. P.; full and 
limited ownership defined, 525; extent of ownership of 
soil, limitations, 526; presumed unlimited when, 527; 
fruits and produce, ownership of, 528; security against 
damage from constructions, 529. 

II. Ownership of Immovables, how acquired, 530. See the 
several Titles of Things Acquired. 

III. Loss of Immovable Ownership, 589-591: Modes of losing 
ownership of immovables, 589; registration of title re- 
quired, when, /(?.-§ 1; property to escheat, when, 7d.-§2; 
expropriation or eminent domain, 590; owner entitled 
to indemnity, payable when, 591. 



Pact of Better Buyer, 1158-1162. 

Paintings, when principal thing, 62-1. 

Paraphernal Property, 310-311. 

Parental Power. See Patrio Poder. 

Parents, when responsible for acts of children, 1521-1. See 
Patrio Poder. 

Partial Comniunity. See Marriage, IX-3. 

Partial nullity of acts, effect, 153. 

Partial Payments, receipt for later presumes former, 943. 

Partition: Action to annul, prescription, 178-§ 6-V; of estate of 
absentee, 469-483, see Absence, II-III; sentences in to be 
transcribed, 532-11; rules of applicable to co-ownership. 641;- 
by drawings, 1480; of decedent's estate, see Wills, XVIII, 
see Successions. 



INDEX. 405 

[References are to Articles.] 

Partnerships. See Societies. Rural, see Societies, V. 
Party Interest, rules of. See Joint Ownership, III. See Various 
Titles. 

Party Walls, Fences, etc: see Joint Ownership, III; common use 
of, 571; in buildings, 579-581. 

Passage, rights of: See Visinage, III. 

Passive Solidarity. See Obligations, VII-3. 

Pasturage, Joint, rules, 646. 

Paternal Power. See Patrio Poder. 

Pathways, private, not servitudes, when, 562. 

Patrimonial rights, prescription of, 166. 

Patrimony, is universality, 57. 

Patrio Poder: Prescription during, 168; 

I. General Provisions, 379-383: Who are subject to power, 
379; exercised by father or mother, when, 380; effect of 
divorce, 381; right of surviving spouse, 382; power over 
illegitimate, guardianship, 383. 
II. Rights over Person of Children, 384. 

III. Rights over Property of Children, 385-391: Right to 
administer property, 385; limitations on right of ad- 
ministration, 386; in conflict of interests curator to be 
appointed, 387; nullity of acts, who may plead, 388; 
usufruct of property, 389-390; property not subject to 
usufruct or administration, 390-391. 

IV. Susipenslon and Extinction of Poder, 392-395: Power is 
extinguished, how, 392; loss by remarriage of mother, 
and recovery, 393; effect of abuse of power, 394; loss by 
judicial act, when, 395. 

Patrons, liable for acts of employes, when, 1521-III, 1523. 

Payment of Obligations, 930-998: 

I. Who Must Pay, 930-933: Any one Interested may pay, 
930; objection of creditor, payment notwithstanding, 
930; payment by uninterested person, when, 930-S. P.; 
entitled to reimbursement, but not subrogated, when, 
931; reimbursement where debtor objects, 932; payment 
Involving alienation valid, when, 933; payment in fungi- 
ble things, effect, 933hS. P. 
II. Who Must Be Paid, 934-938: Creditor or representative 
only, when, 934; payment to reputed creditor, effect. 



406 INDEX. . 

[References are to Articles.] 

935; payment to incapable, effect, 936; payment to 
bearer, presumption, 937; payment after levy or ob- 
jection, 938. 

III. Object and Proof of Payment, 939-949: Receipt must be 
given, retention unless, 939; requisites of acquittance, 
940; judicial action for acquittance, effects, 941; where 
titles lost, proceedings, 942; last receipt presumes pre- 
vious payments, 943; receipt for capital presumes inter- 
est paid, 944; presumption of payment from delivery 
of titles, 945; ineffective if payment proved, when, 945- 
§§1-2; expenses of acquittance paid by whom, 946; 
money payments, in what kind of money, when, 947; 
rates of exchange and interest, 947-§§ 2-4; most favor- 
able to creditor, when, 948; rates of place of payment 
prevail, when, 949. 

IV. Place of Payment, 950-951: Place of debtor's domicile, 
when, 950; choice between several places, when, 950- 
S. P.; in place of immovables, when, 951. 

V. Time of Payment, 952-954: Due immediately, when, 952; 
conditional obligations, proof of fulfillment, 953; when 
demandable before maturity, 954; affects only insolvent, 
when, 954-S. P. 
VI. Default of Payment, 955-963: Who are in default, de- 
fined, 955; debtor liable for damages caused, 956; dam- 
ages instead of performance, when, 956-S. P.; liable for 
impossible performance, when, 957; default of creditor 
as relief to debtor, when, effects, 958; default is purged, 
how, 959; non-performance creates default, when, 960; 
Interpelation, notice or protest requisite, when, 960; 
negative obligations in default, when, 961; criminal acts 
create default, when, 962; debtor not at fault not in 
default, 963. 
VII. Undue Payment, 964-971: Undue payments to be re- 
stored, 964; voluntary payments, proof of error, 965; 
rules in regard to fruits, accessions, etc., 966; immovable 
wrongfully alienated, duty of alienor, 967; liability 
of alienor, when, 968; undue payee exempt from 
restoration, when, 969; certain payments not recover- 
able, 970; illegal payments not recoverable, 971. 
VIII. Payment by Consignation, 972-984: Judicial deposit as 



INDEX. 407 

[References are to Articles.] 

payment, when, 972; in what cases admissible, 973; 
requisites essential to validity, 974; citation to creditor, 
975; place of deposit, 976; effects on interest and risks, 
976; withdrawal of deposit, when, 977; consent for with- 
drawal, when, 978; effect of consent as loss of rights, 
979; deposit of thing due when, citation, 980; undeter- 
mined thing, choice, effects, 981; expenses of deposit 
on whom, 982; litigious things, deposit, effect of pay- 
ment 983; deposit may be required, when, 984. 
IX. Subrogation upon Payment, 985-990: Subrogation by 
law occurs, when, 985; subrogation by agreement, when, 
986; rules of assignments applicable, when, 987; effects 
of subrogation, 988; scope of rights subrogated, 989; 
preferences where property insufficient, 990. 
X. Aipplication of Payments, 991-994: Debtor's right to 
designate, when, 991; consent of creditor required, when, 
991; application by creditor, when, 992; interest pay- 
able first, when, 993; order of application between debts, 
994. 
XI. Things Given in Payment, 995-998: Thing in lieu of 
money, when, 995; rules of purchase and sale apply, 
when, 996; rules of assignment apply, when, 997; evic- 
tion of creditor, effect, 998. 
Of debts of decedent's estate, see Wills, XXI. 
Penal Clauses, in obligations. See Obligations, VIII. 
Penal Liability, of depositary for non-delivery, 1287. 
Penal Provisions, relating to Marriage, 225-228. 
Penalty: Conventional, admissible in compromise, 1034; conven- 
tional, recovery apart from damages, 1061. See Obligations, 
VIII. 
Pensions: excluded from community, 263-1; in lieu of alimentos, 

403; legacy of when payable, 1694. 
Per capita and per stirpes succession, 1604. 
Performance: Of obligations, see Obligations, passim; partial, 
as ratification, 150; of conditional obligations, time of, 953. 
See Various Titles. 
Perishing of thing sold, responsibility, 1104. See Various Titles. 
Peritos, cannot purchase property, when, 1133-IV. See Experts. 
Permission, acts by not constitute possession, 497. 
Personal Law, when applicable, Intr. 8, 10. 



408 INDEX. 

[References are to Articles.] 

Personal Liberty: Offenses against, damages, 1550; what are 

offenses against, 1551; persons liable for, 1552. 
Personal' Property. See Movables. 
Personal Services. See Renting and Hiring, sub-tit. of Personal 

Services. 
Personality, civil, begins at birth, 4. 

Persons, Juridical. See Juridical Persons. See Societies. 
Pharmacists: actions for fees, prescription, 178-§ 6-IX; when 

liable for damages, 1545; are liable with clerk, 1546. 
Physicians: actions for fees, prescription, 178-1 6-IX; when liable 

for damages, 1545. 
Place, of payment. See Payment, IV. 
Plantations. See Constructions and Plantations. 
Planting, as mode of accession. See Constructions and Plan- 
tations. 
Pledges: Prescription against, 168-IV; indirect ownership not 
annulled by, 486; who only can constitute, 756; what sub- 
ject to, 756; requisites of contract, 761; maturity of debt 
for defaults, 762; constitute real right, 674-VII; thing 
pledged subject to obligation, 755; retention of thing after 
maturity of debt, 765; personal liability for unsatisfied bal- 
ance, 767. 
Pledges, 768-804: 

I. General Dispositions, 768-775: Constitution of pledge, 
tradition, 768; possession of object essential, except, 769; 
requisites of contract, 770; exception of fungible things, 
770; formalities of contract, 771; delivery of thing, re- 
tention for expenses, 772; debtor liable for defects, 773; 
obligations of creditor, 774; set-off of damages and debt, 
775. 
II. Legal Pledges (Implied Liens), 776-780: Who entitled 
to liens by law, 776; requisites of accounts for liens, 777; 
right to retain articles for debt, 778; enforcement of 
lien, 779; judicial proceedings for enforcement, 780. 
ill. Agricultural Pledges, 781-788: Objects of agricultural 
pledges, 781; duration of contract, 782; where estate is 
mortgaged, consent, 783; pledge of animals, requisites, 
784; consent for sale of cattle, 785; animals to be de- 
posited, when, 786; substitution of other animals, requi- 
sites, 787; duration and extension, execution, 788. 



INDEX. 409 

[References are to Articles.] 

IV. Pledge of Securities, 789-795: Nature and effect of pledge 
of securities, 789; registration and delivery, 789; pledge 
of personal securities, 790; requisites of the pledge, 791; 
rights of pledge creditor, 792; duty to restore surplus, 
792-IV, 793; effect of notice to debtor, 794; effect of 
wrongful acquittance of debtor, damages, 795, 
V. Registration of Pledge, 796-801: Registration of agri- 
cultural pledge, effect, 796; pledge of securities where 
registered, 797; calls on unpaid pledged securities, 798; 
execution for debt and calls paid, 799; who may register, 
and how, 800; cancellation of pledge, how effected, and 
by whom, 801. 
VI. Extinction of Pledge, 802-804: Modes of extinction, 802; 
waiver of creditor's lien presumed, when, 803; effect of 
partial merger, 804. 

Pledges, Hens of. See Creditors' Meetings. 

Policy, of insurance. See Insurance. 

Pollution of waters forbidden, 584. 

Ponds, rights of alluvion in, 539. 

Ports, rights of access to. See Visinage, III. 

Possession: Of community property, 266; tacking, for adverse 
possession, 552; necessary to valid pledge, exceptions, 769. 

Possession, 485-523 : 

I. Classification of, 485-492: Definition of possessor, 485; 
direct and indirect possession, ownership, 486; holding 
not possession, when, 487; joint possession and rights, 
488; just possession defined, 489; possession in good 
faith defined, 490; presumption of good faith, 490-S. P.; 
presumption of good faith lost, when, 491; character of 
possession presumed to continue, 492. 
II. Acquisition of Possession, 493-498: Modes of acquiring 
possession, 493; who may acquire possession, 494; trans- 
mission of possession causa mortis, 495; possession con- 
tinued by successor, 496; acts not constituting pos- 
session, 497; presumption from possession of immov- 
ables, 498. 
III. Effects of Possession, 499-519: Possessor to be main- 
tained and restored, 499; actual possession where right 
disputed, effect, 500; protection against disturbance, 501; 
possessor may protect self by force, 502; extent of force, 



4 10 INDEX. 

[References are to Articles.'] 

allowed, 502-S. P.; damages for disturbance of posses- 
sion, 503; action for dispossession or damages, 504; plea 
of ownership not effective against possession, when, 505; 
procedure for restoration summary, 506; limitation 
against right of restoration, 507; better possession de- 
fined, 507-S. P.; equal or doubtful rights, effect, 507-S. P.; 
summary and ordinary proceedings, 508; servitudes not 
affected, when, 509; right to fruits, 510; what fruits to 
be restored, 511; fruits presumed receivable, when, 512; 
bad faith possessor liable for fruits, when, 513; reim- 
bursement of expenses, 513; good faith possessor not 
liable for losses, when, 514; bad faith possessor liable 
for losses, 515; improvements by good faith possessor, 
516; has right of retention or lien, 516; improvements 
by bad faith possessor, 517; set-off of Improvements 
against damages, when, 518; value of improvements, 
option, 519. 
IV. Loss of Possession, 520-522: Possession how lost, 520; 
possession of rights, how lost, 520-S. P.; right to re- 
cover things lost or stolen, 521; regressive action by 
holder against transfer, 521; reimbursement where 
thing sold at auction or market, 521-S. P.; loss of pos- 
session by absentee, 522. 
V. Protection of Possession: Actions, summary and ordi- 
nary, to be brought, when, 523; prescription does not 
run, when, 523-S. P. 
Powers of Attorney. See Mandates. 

Pre-emption: Right of in sales of jointly-owned things, 1139; 
right of in certain sales, 1149-1157; nature of right, 1149; in 
case of property expropriated, 1150; exercise upon notice 
of sale, 1151; extends to what property and rights, 1152; 
within what time to be exercised, 1153; how exercised in 
case of joint interest, 1154; obligation to pay certain price, 
1155; obligation to give notice, damages, 1156; right cannot 
be assigned, 1157. 
Preference: Between co-owners to hire thing, 636; right of, in 
sale of emphyteusis, 683-686, 689; of creditor of income from 
imanovable, 752; of mortgage and pledge creditors, 759; of 
debts for agricultural wages, 759-S. P.; of Government, on 
foreclosure of railroad, 855; in sale of jointly-owned things, 



INDEX. 411 

[References are to Articles.] 

1139; between creditors of deceased and of heirs, 1799; see 
Creditors' Meetings; in certain sales, see Pre-emption. 
Prelation, riglit of, see Pre-emption. 
Premature action, effect, 1530-1532. 

Premiums, of Insurance, see Insurance: Is condition of contract, 
1432; policy must specify, 1434; in case of excessive valua 
tion, 1438-1439; rate fixed by agreement, 1442; rate effected 
by misrepresentation, 1444; double premium in case of bad 
faith, 1446; payable on delivery of policy, 1449; interest on 
overdue, 1450; effect of insolvency, etc., 1451; must be paid 
although no loss, 1452; cannot be increased, when, 1453; in 
mutual insurance, 1467; in life insurance, 1471. 
Prescription, 161-179: 

I. General Dispositions, 161-167: How and when waived, 
161; express or tacit waiver, 161; when and by whom 
pleaded, 162; juridical persons subject to, 163; incapa- 
bles may sue representatives for permitting, 164; runs 
against heir, 165; judge cannot invoke on own motion, 
166; accessory rights prescribe, when, 167. 
II. Causes which Impede or Suspend, 168-171: Does not run 
pending certain relations, 168; nor against certain per- 
sons, when, 169; pending certain events, 170; effect of 
suspension between joint creditors, 171. 
III. Causes which Interrupt, 172-176: Acts which interrupt, 
172; begins to run again, when, 173; who may initiate 
interruption, 174; not interrupted by void citation, etc., 
175; effect between joint interests, 176. 
IV. Periods of Prescription, 177-179: Personal and real ac- 
tions in general, 177; special periods of prescription, 
178, to wit: to annul marriage with deflowered wife, § 1; 
for abatement of price or rescission of sale of movable, 
§2; to contest legitimacy of child, §3; same, where 
husband absent, §4-1; to annul marriage of minor, §4- 
II; by coerced spouse to annul marriage, §5-1; to an- 
nul marriage of incapable, § 5-II; to annul marriage of 
minor, § 5-III ; for abatement of price or rescission of 
sale of immovable, § 5-1 V; by hotel and inn-keepers, etc., 
§ 5-V; for revocation of gift, § 6-1; actions concerning 
insurance, §6-11; by child to recover his immovables, 
§ 6-III; by heirs of child in above case, § 6-IV; to annul 



412 "xaam 

[References are to Articles.^ 

partition, § 6-V; of professors and instructors for tuition, 
§6-VI; of boarding-scliool keepers, § 6-Vn; of notaries 
and officials for fees, §6-VIII; of physicians, surgeons, 
etc., § 6-IX; of lawyers, experts, etc., § 6-X; of land- 
owners for loss by avulsion, §6-XI; of heirs of child for 
filiation, §6-XII; for release from adoption, §6-XIII; 
action to annul marriage, §7-1; for debts of less than 
100$, §7-11; of professors and instructors, §7-111; of 
architects, engineers, etc., § 7-IV; actions concerning 
insurance on foreign cause, § 7-V; of spouse or heirs to 
annul adulterous gift, §7-VI; to annul acts of wife done 
without consent, § 7-VII ; of vendor to redeem immov- 
able § 8-7; actions by wife after dissolution or conjugal 
society, §9-1; of heirs of wife in above cases, §9-11; of 
wife to recover dotal property, § 9-III; actions to exclude 
heir or justify disinheritance, § 9-IV; to annul or re- 
scind contracts, § 9-V; of natural child to contest ac- 
knowledgment, § 9-VI ; for alimentary pensions, § lO-I ; 
for payment of incomes, §10-11; for interest or other 
periodical payments, §10-111; for rentals, § 10-IV; of 
servants and laborers, § 10-V; for public debts, §10- 
VI; for violation of rights of author, §10-VII; actions 
for rescission, §10-VIII; for injuries to property, §10- 
IX; in cases not specially provided for, 179. 
Prescription: Of dotal immovables, 298; of actions of absentee, 
476; possession of rights lost by, 520-S. P.; of actions to 
recover possession, 523; in cases of usucaption, 553; of ser- 
vitudes, 698; extinguishes usufruct, 739- VI; term, in case 
of juridical person, 741; of lien of antichretic debt, when, 
760; extinguishes mortgage, 849; of securities wrongfully 
taken, 1509; periods of, 177-179. See the several Titles. 
Presentation, of securities payable to bearer, required, 1508. 
Presentations. See Obligations. 

Presumptions: Of truth of signed declaration, 131; as a mode 
of proof, 136-V; of waiver of prescription, 161; in favor of 
marriage, 206; of receipt of dowry, 305; as to legitimacy, 
338-343; of death, from absence, 481-483, see Absence; of 
good faith in possession, 490-S. P.; how and when lost, 491; 
continuance of presumption, when, 492; from possession of 
immovable, 498; as to full ownership, 527; of ownership 



INDEX. 413 

[References are to Articles.] 

from adverse possession, 550-551; of common rights between 
adjoining owners, 588-§l; from payment to bearer of ac- 
quittance, 937; as to equal shares in common thing, 639; 
joint owner presumed common mandatary, 640; as to owner- 
ship of real right registered, 859; of payment from latest 
receipt, 943; of payment of interest from receipt for capital, 
944; of payment from delivery of title, 945; that holder of 
security is owner, 1510. - 

Price: Abatement and recovery of; prescription of action, 178; 
sale of movable with redhibitory defect, §2; of immovable 
with like defect, § 5-1 V; action for abatement of, 178-§ 2; of 
immovable, 178-1 5-IV; abatement of instead of rescission, 
1105-1106; abatement upon eviction, 1115; abatement of, of 
immovables, 1136; of sale, deposit of, when, 535-S. P.; In 
purchase and sale, how fixed, 1123-1125; no delivery till 
paid, 1130; deposit of, in sale of jointly-owned things, 1139. 
See Titles of Various Acts and Contracts. 

Principal Things, defined, 58. 

Principal, and Mandatary. See Mandates. 

Principal, liable for acts of agent, when, 1521-III, 1523. 

Priority of mortgages, rules, 833-837. See Mortgages, III. 

Prisoners: marriage of, 201; domicile of, 40. 

Private Instrument: Validity and effect, 135; two witnesses 
required, 135; must be registered, when, 135; how proven, 
Id. S. P. ; of mandate, requisites of, 1289. 

Private passages and pathways, not servitude, when, 562. 

Private Property, what is, 65. 

Privileged communications, exempted as proofs, 144. 

Probate, place of, 1578. See iSuccessi(ons, Wills. 

Process, form of, lex loci governs, Intr. 15. 

Procuration, 1288. See MSndates. 

Procurators, See Mandates, V; actions for fees, prescription, 
178-§ 6-X 

Products, organic, of the soil, are accessories, 61. 

Professional books and instruments, excluded from community, 
263-IX. 

Professional negligence, etc., damages for, 1545. 

Pwofessors, actions for fees, prescription, 178-§ 6-VI, VII; Id. 
§ 7-III. 



414 INDEX. 

[References are to Articles.] 

Profits: unrealized, as damages, 1059-1061; loss of as damages, 
1538-1539. 

Promise of Marriage, seduction under, damages, 1548-III. 

Promulgation, of laws, when and how, Intr. 2. 

Proof: what law governs, Intr. 12; of private instrument, how 
made, 135-S. P.; of contracts of over one conto, 141; of 
juridical acts not requiring special form, 136; copies and 
certified copies las proof, 137-139; of voluntary deposits, 1281; 
of necessary deposits, 1283-S. P.; of negligence or fault, for 
damages, 1523; of payment, see Payment, III. 

Property: what law governs, Intr. 10, 14; injuries to, action, 
prescription, 178-1 10-IX; nocive use of, rules, 554-555; regi- 
men of between spouses, see Marriage, VIII-IX; of husband 
and wife, see Marriage, VIII-XII. See Public Property; 
Private Property. 

Protection of Possession, actions, 523; of (ownership, 524. 

Protest: interrupts prescription, 172; payment under, of stock 
calls when, 798-799. 

Provisional Succession, in case of absence. See Absence. 

Publications. See Literary, etc. Property. See Edition. 

Public Debt: titles of, when immovables, 44-11; actions, prescrip- 
tion, 178-1 10-VI. 

Public Elmplfoyes, cannot purchase property, when, 1133. 

Public Instrument: when essential to validity, 133-134, 141; when 
required by contract, 133; in antenuptial agreements and 
adoptions, 134; in contracts relating to real rights, when, 
134-11; dependent on value of one cowfo, 134-11, 141; oral 
evidence inadmissible, when, 141; when substituted by pri- 
vate, 1289-§3. 

Public Necessity and Utility, what constitutes, 590-591. 

Public Office, removes incapacity of minority, 9-11^. 

Public Officials, not to be guardians, when, 413-VI. 

Public Property: defined, 65; what constitutes, 66; is inalienable, 
when, 67; qommon use of, 68; who cannot purchase, 1133- 
III, IV. 

Public Register, inscription of vital statistics, etc., 12. 

Public Roads, rights of access to. See Visinage, IH. 

Public Safety, case of public utility, 590. 

Public Treasury, right to legal mortgage, when, 827ry, VII. 



INDEX, 415 

[References are to Articles.'i 

Purchase and Sale: General r'ules, 1122-1139; definition, 1122; 
fixing of price, 1123-1125; when contract perfected, 1126, 
tradition, effect upon risks, 1127; see Tradition; counting, 
weighing, etc., 1127; risk of transportation, 1128; delivery 
to be made when, 1130. See Sales. 

Q 

Qualificati(Ons of surety, 1489. 

Quarries, subject to mortgage, 810-VI. 

Quiet, nocive use of property prevented, 554-555. 

R 

Railroads: are of public utility, 590-§2-II; mortgages of, see 
Mortgages, V. 

Rape, damages for, 1548-IV. 

Ratification: of voidable acts, 148-151; relates back to date of 
act, 148; by partial performance, 150; of payments, 934; iof 
unauthorized acts of agents, 1296-1297. 

Real Property. See Immovables. 

Real Rights: when immovables, 44-1; when movables, 48-1; pub- 
lic instrument required to create or transfer, 134-11; what 
contracts constitute, 674; tradition of movables requisite, 
675; registration of title on immpvables requisite, 676; real 
rights pass with title of immovable, 677; lien of taxes foli 
lows land, when, 677-S. P.; see the various Titles of Con- 
tracts constituting Real Rights; create preferences, 1557. 

Real Rights of G-uaranty (by Pledge, Mortgage, etc), 755-767: 
nature of lien of pledge, etc., 755; who can pledge, mort- 
gage, etc., 756; what things subject to pledge, etc., 756; 
effect of after-acquired title, 756-S. P.; pledge of thing 
held in common, divisible and indivisible, 757; effect of 
installment payments as release, 758; right to execution and 
preferences, 759; effect of priority of registrations, 759; 
preferences of agricultural wages, 759; retention of pledge, 
how long, 760; requisites of contract creating, 761; debt 
secured becomes payable when, 762; subrogation of indem- 
nity, when, 762 §1; effect of perishing or expropriation of 
object pledged, 762-§2; effect of maturity on interest, 763; 
obligation (Of third person giving security, 764; retention of 



416 INDEX. 

[References are to Articles.] 

object if debt unpaid, invalid, 765; partial or entire redemp- 
tion by Successors, 766; subrogation of redeeming successor, 
766-S. P.; personal liability for unpaid balance, 767. 

Receipts. See Payments, III. 

Reconciliation of divorced spouses, effect, 323. 

Records, legal, as proof, 136-11 

Recovery: of gaming losses and loans, 1477-1478; of undue pay- 
ments, see Payment, VII. 

Redemption: Of immovables, prescription of action, 178-§8; of 
emphyteusis, 693; of servitude, effects, 709-ITI; of property 
charged with income, 751; partial, of thing mortgaged or 
pledged, 766; of mortgaged property, 814-818-; of mortgages, 
in insolvency, etc., 821-822; extinguishes mortgage, 849. 

Redhibitory Vices, 1101-1106: See Rescission for( Vices. 

Reduction of legacies. See Wills, XIII. 

Regimen of property between spiouses. See Marriage, VIII-IX. 

Register of Immovables, 856-862: Registry embraces what, 856; 
who may require transcription, 857; who benefited by tran- 
scription, 858; real rights pertain to whom, 859; rectification 
of inscription, 860; effect of failure to register, 860-8. P.; 
where registration to be made, 861; expenses borne by 
whom, 862. 

Registration. See Inscription. See Transcription. 

Of companies, etc., 16, §2; 18-19; as mode of acquiring 
ownership, 530; of mortgages, 828, 830; see Mortgages, III. 

Regressive actions: By public juridical persons, 15; by incapa- 
bles, for prescription, 164; of holder of thing recovered by 
owner, 521; between joint owners, 625; between principles 
in mandate, 1314; for damages for wrongful acts, 1519-1520, 
1524; share of insolvent heir, 1798. See Various Titles. 

Relationship, 330-378: 

I. General Provisions, 330-336: In direct line, 330; collateral 

relations, 331; legitimate, illegitimate, natural and civil, 
332; manner of counting degrees, 333; relations of mar- 
ried persons, 334; affinity not extinguished by dissolu- 
tion, when, 335; relationship by adoption, 336. 

II. Legitimate Filiation, 337-351: Legitimacy of children of 

annulled or void marriage, 337; presumptions of legiti- 
macy, time limits, 338; cannot be contested when, 339; 
proof in contest of legitimacy, 340; separation of par- 



INDEX. 417 

[References are to Articles.'] 

ents, cohabitation, 341; impotency as proof of illegiti- 
macy, 342; adultery of wife as affecting presumption, 
343; husband only can contest, 344; survival of action 
to contest, 345; confession of mother not suSacient, 346; 
proof iby certificate of registry, 347; effect of birth reg- 
istry, 348; proof in default of registry, 349; who may 
maintain action of filiation, 350; hehrs may continue 
suit when, 351. 
III. Legitimation, 352-354: Effect of legitimation, 352; legiti- 
mation by marriage, 353; legitimation benefits descend- 
ants, 354. 
IV. Acknowledgment of Illegitimates, 355-357: Acknowledg- 
ment, how effected, 355, 357; contest of maternity, when 
and ihow, 356; how and when made, 357; incestuous and 
adulterine children, 358; right to live in conjugal home, 
359; who entitled to patrio poder, 360; no conditions of 
acknowledgment, 361; consent 'Of child required when, 
362; minor may repudiate, when, 362; illegitimates may 
sue for acknowledgment, when, 363; Investigation of 
maternity prohibited, when, 364; who may contest in- 
vestigation, 365; effect of judgment, order affecting 
children, 366; filiation under void marriage, 367. 
V. Adoption, 368-378: Who can adopt another, 368; age of 
adopting person, 368-369; adoption by two persons, 370; 
adoption of ward forbidden when, 371 ; of minor or inter- 
dict, 372; may be released from adoption when, 373; 
dissolution of adoption when, 374; adoption how made, 
375; relationship of adoption, 376; effect of after birth 
of child, 377; effect on natural relationship and patrio 
poder, 378. 

Relations, cannot be witnesses, when, 142-IV. 

Relatives, to act as guardians, when, 409. 

Release of Surety, when and how effected, 1499-1500; 1503-1504. 

Remission of Debts, 1053-1055: By surrender of evidence of, 
1053; of thing pledged, effect, 1054; as to one of joint-debtors, 
1055; of obligations, see Obligations, passim. See "Wills. 

Removal of guardians, 445. 

Renouncement: Of creditor extinguishes pledge, 802-III; 
is presumed when, 803; as loss of ownership, 589; 
extinguishes mortgage, 849; of mandate, notice and effects. 



418 INDEX. 

[References are to Articles.] 

1320; of inheritance, see Successions, in Greneral, III. See 
Waiver. 

Rent: actions tor, prescription, 178-§ 10-IV; abatement for de,- 
terioration, 1190; when and how paid, 1192-11; special lien 
for, 1566-VI. See Renting and Hiring. 

Renter: may require security for possible damages, 529; may 
prevent nocive use of property, 554-555. 

Renting and Hiring, 1188-1247: Definition, 1188; lessor must 
deliver, and maintain thing leased, 1189; effects of deteriora- 
tion of thing, 1190; lessor must protect lessee, 1191; hirer 
must use, pay rent, restore, etc., 1192; effect of misuse by 
hirer, 1193; lessor cannot retake before time, 1193-S. P.; 
expiration of lease, notice, 1194; effect of continued use, 
1195; effect of failure to return, 1196; effects of alienation 
during term, 1197; passes on death to heirs, 1198; "unlawful 
retention of thing hired, 1199. 

I. Of Estates: term of lease, 1200; right to sub-lease or 

assign lease, 1201; obligations of sub-lease, 1202; effect 
of sub-lease, 1202, § 2; effects of extinction of lease, 1203; 
lessor cannot change use of estate, 1204; repairs to 
leased property, 1205; repairs to be made by whom, 
1206; lessee may require statement of condition, 1207; 
effects of burning of property, 1208; notice of termina- 
tion of lease, 1209; urban leases regulated by local 
usages, 1210; 

II. Of Rural Estates: how lessee must use property, 1211; 

effects of misuse of estate, 1211; duration of indetermi- 
nate lease, 1212; notice of termination of lease, 1213; 
effect of bad crops, 1214; duty of outgoing lessee, 1215; 
duty of incoming lessee, 1215; 
III. Of Personal Services: what services may be hired, 1216; 
contract of service by illiterate, 1217; amount of re- 
muneration, how fixed, 1218; retribution to be paid, 
when, 1219; hiring cannot exceed four years, 1220; 
contract may be rescinded, when, 1221; notice of rescis- 
sion, 1221^S. P.; term of agricultural hiring, 1222; idle 
time to be deducted, 1223; kind of services to be ren- 
dered, 1224; employe cannot quit service, when, 1225; 
effect of wrongful quitting, 1225-S. P.; employe may 
quit service, when, 1226; effects of employe quitting 



INDEX. 419 

[References are to Ai-ticles.] 

service, 1227; liability of employer for unjust discharge, 
1228; employer may terminate seirvice, when, 1229; 
duty of employer to give certificate, when, 1230; effects 
of discharge of employe, 1231; employer cannot assign 
contract of service, 1232; hiring terminated by death, 
1233; employer cannot charge interest on debt of em- 
ploye, 1234; enticing employe of another, 1235; effect of 
alienation of agricultural estate, 1236; 
IV. Building contracts: contractor of work or materials, 1237; 
risk of material furnished, 1238; risks where only work 
furnished, 1239; effects of perishing of thing, 1240; veri- 
fication of work done, 1241; presumption as to partial 
payments, 1241-(S. P. ; acceptance or rejection of building, 
1242; abatement of price, when, 1243; contractor to pay 
for spoiled material, 1244; warranty of building, 1245; 
effect of alteration of plans, 1246; effect of discontinuing 
work, 1247. 
Repairs: right to enter on adjoining land for, 587; to leased 
property, 1205-1206; lessee must consent to, 1205; abatement 
of price, when, 1205-§1; rescission of contract, when, 1205- 
§2; lessor to make repairs, 1206; small repairs by lessee, 
1206-*S. P. 
Repeal: Of laws, effects, Intr. 4; of previous laws by Code, 1807. 
Representation: of juridical persons, how, 17; of absentee by 

heirs, 476; among heirs, see Successions, legitimate, II. 
Reproduction of literary, etc. works. See Literary, etc. Property. 
Re-purchase: right of in certain sales, 1140-1143; right and condi- 
tions of, 1140; within what time to be exercised, 1141; rights 
of action against purchasers, 1142; joint right of re-purchase, 
1143. 
Res adjudicata, rules of, Intr. 3. 

Rescission of Contracts: action for, prescription, 178; sale of 
movable with redhibitory defect, §2; of immovable with 
like defect, § 5-1 V; reciprocal contracts, § 5-1 V; for coercion, 
fraud, incapacity, etc., § 9-V; rescissory actions, SIO-VIII; 
for vices and defects, when, 1101; ignorance of defect, effect, 
1102; damages upon rescission, 1103; perishing of thing, 
effect, 1104; abatement of price instead, 1105; things sold at 
auction, no rescission, 1106; for eviction, 1108, 1115; of 
sale of immovables, when, 1136; of sale if price not paid. 



420 INDEX. 

[References are to Articles.'\ 

1163; of hiring contract for deterioration, 1190; of contract 
of hiring, damages, 1193; of building contract, 1247; of 
obligations, see Obligations. See Titles of various Acts and 
Contracts. 

Residence, law of, application, Intr. 9. See Law. 

Resolution, of conditions in contracts, 647-648. 

Resolutions, of Societies, how adopted, 1394. 

Resol'utive Conditions. See Conditions, 114-128. 

Respondeat Superior, rule of, 1521-1523. See Damages for Wrong- 
ful Acts. 

Responsibility, Civil: for deceit, 93; deceit by representative, 96. 
See Civil Responsibility. See Damages for Wrongful Acts. 

Restitution: benefit of, not for incapables, 8; of thing taken, 
valuation, 1543; of dowry, 300-307. See Marriage. 

Restoration: of thing wrongfully taken, 1541-1542; of Posses- 
sion, see Possession, III. 

Retention: Of thing subject to pledge, mortgage, etc., after 
maturity of debt, 765; of thing pledged, for expenses, 772; 
right of, see Liens. 

Retraction: Of offer of contract, effect, 1081-IV-1085; of contract, 
form of, lft93; of contract, effect on earnest, 1095, 1097; term 
of in retriovenda, 1141; of acceptance of Inheritance, 1590. 

Retroactive, laws forbidden, Intr, 3. 

Retro-venda. See Re-Purchase. 

Reversion of dowry may be stipulated, 283. 

Revocation: Of law, effect, Intr. 4; of sale for better buyer, 1158- 
1162; of wills, how effected, 1626, see Wills, XIV; of dona- 
tions, see Donations; of mandates, see Mandates, IV. 

Revocation of offers of reward, 1514. See Rewards. 

Rewards: For finding lost things, 604; obligation of public of- 
fers, 1512; person performing entitled to reward, 1513; revo- 
cation of offer, when effective, 1514; performance by more 
than one person, 1515; rules governing public competitions, 
1516; ownership of thing winning competition, 1517. 

Rights: how acq'ulred, 74; may be acquired by self or through 
another, Id.-l; for one's self or for another, Jd.-II; actual 
and future, defined, Id.-lll, and S. P.; every right protected 
by an action, 75; suitor must have personal Interest, 76; 
moral interest, defined, 7«t.-S. P.; lost by object periihing. 



INDEX. 421 

[References are to Articles.'\ 

77; perishing of object defined, 78; damages for loss, 79-80. 
Rights, civil. See Civil Rights. 
Rights of Neighbors or Visinage. See Visinage. 
Riparian Rights. See Islands; Alluvion; Avulsion; Abandoned 

Channel. 
Risks: In purchase and sale, 1127; of transportation, in purchase 

and sale, 1128; in Insurance, see Insurance. See Aleatory 

Contracts. See Titles of various Acts and Contracts. 
Rivers. See Islands; Alluvion; Avulsion; Abandoned Channel. 
Roofs. See Visinage. 
Rural Partnerships. See Societies, V. 



Safety, nocive use of property prevented, 554-555. 

Sales: See Purchase and Sale. Upon Approval, see Approval. 
Sales upon. 

Sales: consent of wife required, when, 235; consent of husband 
required, when, 242; consent supplied by judge, when, 237- 
239, 242-245; of pledges, by private sale, when allowed, 774- 
III; private, of pledge, effects, 802-IV, 803; insolvency of 
purchaser before delivery, 1131; who cannot buy and sell 
to each other, 1132-1133; things that cannot be sold, when, 
1133; certain prohibited, 1133-1134; by sample, warranty, 
1135; of immovables, to show tax paid, 1137; of joint things, 
effect of defects, 1138; of indivisible things, preference in, 
1139; with right of Re-purchase, 1140-1143; pact of Better 
Buyer, definition, 1158; duration and effect of clause, 1158- 
S. P.; nature of the condition, 1159; applicable only to im- 
movables, 1160; preference of the buyer, 1161; when sale 
becomes definitive, 1161; rescission if price not paid, 1163. 

Salvage: deposit of thing required, 1282-11; lien for, 1566-11. 

Sample, sales by, warranty, 1135. 

Savages, incapacity of, 6-IV., and S. P. 

Sculptures, when principal thing, 62-11. 

Securities: pledges of, to be registered, where, 797; pledge of, see 
Pledges, IV. 

Securities Payable to Bearer, 1505-1511: Holder may demand 
performance, 1505; maker discharged by payment to whom, 
1505; effect of involuntary circulation, 1506; defenses againit 



422 INDEX. 

[References are to Articles.] 

holder, 1507; instrument must be presented, 1508; wrong- 
ful dispossession, remedy, 1509; instrument payable to 
creditor "or bearer," effects, 1510; rights of creditor named 
in title, 1510; unauthorized title to bearer void, 1511; state 
or municipal titles valid, 1511. 
Security: For judicial costs, Intr. 18; for dowry, when required, 
297; for guardianship, 418-421, see Guardianship, IV.; for 
provisional succession of absentee, 472-473, 478; for possible 
damage by constructions on land, 529. See Bonds; Guaranty. 
Seduction, damages for, 1548-III. 
Seeds: of another on own land, or vice versa, rules 546-549; 

special lien for, 1566-V, 1567. 
Sentences. See Judgments. 

Separation of Bodies, in annulment or divorce, 223. 
Separation of Dowry, 308-309. 
Separation of Estates. See Marriage, IX-4. 
Separation of Property, obligatory in certain marriages, 226, 

258. See Marriage, IX-4. 
Servants: Actions for wages, prescription, 178-§ 10-V; domestic, 

lien for wages, 1569-VII. 
Services, Personal. See Renting and Hiring, IIT. 
Servitudes: Certain possessory actions not applicable, 509; con- 
stitute real right, 674-11. 

I. Constitution of Servitudes, 695-707: Constitution of sot- 
vitudes, 695-707; constitution of servitudes, effect, 695; 
servitude not presumed, 696; unapparent servitudes, how 
constituted, 697; continued servitude implies title, when, 
698; effect and registration of judgment, 698; 
preservation of servitude, expenses, 699; who re- 
sponsible for preservation, 700; when servient estate 
liable, abandonment, 701; use cannot be obstructed, 
702; relocation of servitude, when, 703; extent 
of use, cannot be amplified, 704; servitudes of transit, 
extent, 705; indemnity for amplification, when, 706; may 
be prevented, when, 706-S. P.; indivisibility, effect of 
partition, 707. 
II. Extinction of Servitudes, 708-712: Mahner of extinction, 
708; cancellation may be demanded, when, 709; other 
modes of extinction, 710; cancellation of registration, 
711; where dominant estate is mortgaged, 712. 



INDEX. 423 

[References are to Articles.} 

Set-Off, 1009-1024: Set-off occurs when, 1009; what debts and 
things subject to, 1010; things not compensable, when, 1011; 
uncertain things subject to choice, 1012; debtor and surety, 
respective rights, 1013; days of grace do not affect, 1014; 
cause of debts, effect of different, 1016; waiver of right, 
effect, 1016; set-off as to public debts, 1017; waiver by mutual 
consent, effect, 1018; set-off by third person obligated, 1019; 
set-off in solidary debts, 1020; assignment of debts, effect, 
1021; place of payment, expenses, 1022; rules of imputation 
of payment applicable, when, 1023; rights of third persons 
not affected, 1024; in cases of pledge, 775. 
Sexual offenses, damages tar, 1548-1549. 
Ships, are subject to mortgage, 810-VII, 825. 
Sick persons, marriage of, 198-200. 
Silence: Of law, no excuse, Intr. 5; when deceitful, and ground of 

nullity, 94. 
Simulation: Defined, 102; intention as element, 103; judicial 
effects of, 104; who may plead effects, 105; annulment of con- 
tract for, prescription, 178-§ 9-V; when not available as 
defense, 1072. 
Singular things, defined, 54-1. 
Slander, measure of damages for, 1647. 

Societies: civil, commercial, etc., are private juridical persons, 
16; must be registered, 16-§ 1, 18; must be represented, 
how, 17. 
Societies, 1363-1423: 

I. General Provisions, 1363-1374: Contract defined, 1363; 
application of commercial laws, 1364; civil laws appli- 
cable, when, 1365; proof of contract, 1366; classes of 
societies, 1367; universal society, defined, 1368; effect 
of agreement, 1369; particular society defined, 1370-1371; 
sharing profits and losses, 1372; common ownership of 
property, 1374; duration of society, rules, 1374. 
II. Rights and Obligations of Members, 1375-1394: Begin- 
ning of relations, 1375; nature and amount of contri- 
butions of capital, 1376; liability of member for eviction, 
1377; title to fungible contributions, 1378; profits of 
members belong to society, 1379; members must in- 
demnify society for damages, 1380; members cannot 
set-off liability, 1380; share in profits and losses, 1381; 



424 INDEX. 

[References are to Articles.'] 

managing member entitled to reimbursemejut, when, 
1382; extent of powers of managing member, 1383; 
powers of joint managers, 1384; where powers are joint, 
1385; general rjglits of members in management, 1386; 
restrictions on non-managing members, 1387; transfer 
of member's rights, effect, 1388; participation in debts 
due to society, 1389; risks of things of society, 1390; 
members entitled to indemnity, when, 1391; liability 
for unlawful gains, 1392; restitution of improper shares, 
1393; right of voting, 1394; number of votes required, 
1394. 

III. Obligations to Third Persons, 1395-1398: Society obli- 
gations contracted, how, 1395; liability for society debts, 
1396, 1398; insolvency of one member, effects, 1397-S. P.; 
debtor not discharged by improper payment, 1397; lia- 
bility for social debts, 1398; members not bound by what 
acts, 1398. 

IV. Dissolution of Society, 1399-1409: Society dissolved, how, 
1399; extension of term of society, how, 1400; time of 
extension, effects, 1401; death of member, effects of, 
1402; continuation with heirs, 1402-1403; withdrawal of 
member, effects, 1404; withdrawal in bad faith, effects, 
1405-1406; liability for debts survives dissolution, 1407; 
debts to be paid, how, 1407; dissolution before stipu- 
lated term, when, 1408; distribution of assets, rules 
applicable, 1409. 

V. Rural Partnerships, 1410-1423: Definition of agricultural 
tenancy, 1410; liability of cropper, 1411; risks of acci- 
dent, etc., 1412; effect of death of partner, 1413; rules 
of lease apply, 1414; effect of alienation, 1415; stock- 
raising partnership, defined, 1416; object of the partner- 
ship, 1417; substitution of animals, 1418; risks of acci- 
dent and loss, 1419; profits from dead animals, 1420; 
disposition of cattle, 1421; expenses, how borne, 1422; 
rules of law applicable, 1423. 

Soil, extent of rights of owner, 526. 

Soldiers: Domicile of, 38; may be excused as guardians, 414- 
VII; wills of, see Wills, V-2. 

Solemnities, omission as avoiding acts, 145. 

Solicitors, actions for fees, prescription, 178-S 6-X. 



INDEX. 425 

[References are to Articles.} 

Solidary Obligations. See Obligations, VII. See Titles of Vari- 
ous Acts and Contracts; set-off in, 1020. 

Solidarity: Of co-sureties, 1493; of joint wrong-doers, accom- 
plices, etc., 1518. 

Solvency, guaranty of, 1482, 1498. See Insolvency. 

Sowing, as mode of accession. See Constructions and Planta- 
tions. 

Special Powers of Attorney, when required, 1294-1295. 

Special powers not conferred by general mandate, 1326. See 
Mandates. 

Species, New. See Specification. 

Specification, 611-614: New tbing from raw material, ownership, 
611; where material belongs to another, 612; effect of bad 
faith, 612-§1; effect of value on ownership, 612-§2; damages 
to injured owner, 613-614. 

Specialization. See Mortgages. 

Spendthrifts: Incapacity, 6-III; curatorship for, 446; see Curator- 
ship, I. 

Spendthrift Trusts authorized, 1430. 

Spouses. See Husband and Wife; Married Women. 

Springs: right as access to, see Visinage, III; works causing 
drainage forbidden, 585. 

Stables, etc., rules concerning, 578. 

State or Municipal securities to bearer, 1511. 

Stereometriats, actions for fees, prescription, 178-§ 7-IV. 

Stock Exchange Operations, when gambling, 1479. 

Stocks, pledges of, to be registered, where, 797. 

Stock-raising Partnerships. See Societies, V. 

Stolen movables, recovery of from holder, 521. 

Strangers, cannot acquire joint interest, when, 633. 

Sub-leasing of leased estates, 1201-1203: right to sub-lease, 1201; 
lessee continues liable for rental, 1201; liability of sub- 
lessee for rental, 1202; duties of sub-lessee, 1202-§1; 
effects of sub-lease, 1202-§ 2 ; effects of extinction of lease, 
1203. See Renting and Hiring. 

Subrogation: Of dowry property, when, 291; of price of dowry 
property sold, 293-S. P.; liability for judge for failure to 
require, 294; in cases of income charged on immovables, 749; 
in cases of real rights of guaranty, 762; of heir, etc., re- 
deeming mortgage or pledge, 766-S. P.; of pledged animals. 



426 INDEX. 

[References are to Articles.] 

when, 787; of assignee of mortgage credit, 1067-S. P.; of 

sureties, 1495; effect of prevention, 1503-11; In cases of 

paymeirt, see Payment, IX. See Titles of Various Acts and 

Contracts. 
Substitution: Of public by private mandate, when, 1289-13; 

of judicial mandate, effect, 1328; of insurance beneficiary, 

1471-1473; of surety, when, 1490; of heirs and legatees, see 

Wills, XIV. See Subrogation. 
Succession: What law governs, Intr. 14; right of open, is 

immovable, 44-^11; as mode of acquiring ownership, 630; 

in case of absence, see Absence. See Wills. 
Successions, In General, 1572-1602: 

I. General Provisions, 1572-1577: Passing of estate, 1672; 
succession given by will or law, 1573; intestate or 
legitimate succession, when, 1574-1575; disposition In 
case of necessary heirs, 1676; capacity to succeed, how 
determined, 1577. 

II. Transmission of Estate, 1578-1580: Place of probate 
proceedings, 1578; rights of surviving spouse, 1579; co- 
heirs, appointment of maker of inventory, 1579-§§ 2-3; 
recovery of universality by co-heir, J.680-S. P. 
III. Acceptance and Renunciation of Inheritance, 1681-1590: 
Form of acceptance or renunciation, 1681; effect of 
assignment as acceptance, 1582; cannot be partial or 
conditional, 1583; same, as concerns legacies, 1683; 
heir may be required to decide, 1584; death of heir 
before decision, 1585; creditors may accept for heir, 
when, 1586; effect of acceptance by creditors, 1686; 
extent of heir's liability for charges, 1687; effect of re- 
nouncement, representation, 1588; effect of renounce- 
ment, accretion of share, 1689; retraction of acceptance 
or renouncement, 1590. 

IV. Vacant Estates, 1591-1594: Of intestate estates, when, 
1591; of testate estates, when, 1592; declaration of 
vacancy, when, 1593; effect of declaration of vacancy, 
escheats, 1694. 

V. Who Cannot Succeed, 1695-1602: Persons excluded from 
Inheritance, 1695; judicial declaration of exclusion, 
1596; guilty person may be admitted, when, 1697; must 
restore benefits received, 1598; heirs of excluded per- 



INDEX. 427 

[References are to Articles.] 

son, 1599; validity of acts of excluded person, liability 
for damages, 1600; to be indemnified for expenses, 1601; 
effects of exclusion, 1602. 
Succession, Legitimate, 1603-1625: 

I. Order of Succession, 1603-1619: Order of Intestate suc- 
cession, 1603; succession per capita and per stirpes, 
1604; legitimated, adopted, etc. children, 1605; ascend- 
ants succeed when no descendants, 1606; order of suc- 
cession among descendants, 1607-1608; succession to 
adopted child, 1609; succession of illegitimates, 1610; 
surviving spouse succeeds, vrhen, 1611; succession of 
collaterals, 1612; order among collaterals, 1613; whole 
and half blood relations, 1614-1616; representation 
among collaterals, 1617; adopted child and relatives of 
adopting parent, 1618; escheats to State, 1619. 

II. Right of Representation, 1620-1625: Right operates, 
when, 1620; only In descendant line, 1621; in collateral 
line, 1622; inheritance of representatives, 1623; how 
shared between representatives, 1624; renouncing heir 
as representative, 1625. 

Successors, continue possession of antecessor, 496. 

Suicide, effect on insurance, 1440. 

Supplied consent, for sales, mortgages, etc., between husband 
and wife, 237-239, 242-245. 

Support: See Alimentos; of wife by husband ceases, when, 234; 
legacy of includes what, 1687; when payable, 1696. 

Surety, how affected by prescription, 176. 

Surety Contracts, 1481-1504: 

I. General Provisions, 1481-1490: Contract defined, 1481; 
guaranty of solvency, 1482; form and interpretation of 
contract, 1483; consent of debtor unnecessary, 1484; 
future debts, liability of surety, 1485; scope of surety 
contract, 1486; value and conditions of contract, 1487; 
security for void obligations, 1488; qualifications of 
surety, 1489; insolvency or incapacity of surety, 1490. 

II. Effects of Surety Contract, 1491-1501: Secondary liabil- 
ity of surety, 1491; may claim "benefit of order" when, 
Id.-S. P.; benefit not available, when, 1492; effect of joint 
undertaking, 1493; benefit of division, effect, 1493; limi- 
tation of liability, 1494; subrogation of surety to rights 



428 INDEX. 

[References are to Articlet.'] 

of creditor, 1495; Insolvency of one surety, effects, Id.- 
S. P.; reimbursement of surety, 1496; interest upon 
disbursements, 1497; surety may require creditor to 
proceed, 1498; may require debtor to act, 1499; surety 
may be released, when, 1500; effect of death of surety, 
1501. 
III. Extinction of the Security, 1502-1504; What defenses 
surety may plead, 1502; acts which release surety, 1503- 
1504; insolvency of debtor during delay by creditor, 
1504. 

Surgeons: Actions for fees, prescription, 178-§ 6-IX; when liable 
for damages, 1545. 

Surveyors, actions for fees, prescription, 178-i 7-I'V. 

Survival of action for civil damages, 1526. 

Suspensive conditions. See Conditions, 114-128. 



Tacit prescription, when, 161. 

Tacking possessions, in adverse possession, 652. 

Tariff, of inn-keepers, etc., prices required, 777, 780. 

Taxes: Lien of passes with grant when, 677-S. P.; certificate of 
payment recited in deed, effect. Id., emphyteuta to pay, 
when, .682; on usufructed property, by whom paid, 733; pay- 
ment of must be shown in deeds of sale, 1137; effect of cer- 
tificate of payment, 1137-S. P.; general lien for, 1569- VI. 

Teachers: Actions for fees, prescription, 178-§ 6-VI-VI^; Zd.-§ 7- 
III; lien for pay, when, 1570. 

Telegraph, contracts by, 1086. 

Telephone, contracts by, 1081-1. 

Tenant: may require security for possible damages, 529; may 
prevent nocive use of property, 554-555; remission of rental, 
when, 678, See Habitation; Leases; Emphyteusis, Antichre- 
sis. See Renting and Hiring. 

Terms. See Conditions; Time, Computation of. 

Testamentary Succession. See Succession, Testamentary; Wills. 

Theaters. See Edition, 1359-1362. 

Theatrical Plays and Rights. See Literary, etc. Property. 

Things, Classification of: immovables, 43-46; movables, 47-49; 
fungible and non-fungible, 50; consumable, 51; divisible, 52; 



INDEX. 429 

[References are to Articles.'] 

indivisible, 53; singular, 54; collective, 54; universal 64-57; 
principal and accessory, 58; public and private, 65; things 
out of commerce, 69; family property, or exempt from 
execution, 70-73. 

Things given in payment. See Payment, XI. 

Things, Undivided, rights of possessor, 488. 

Third Persons, contracts in favor of, 1098-1100. See Contracts, 
Third Persons. 

Time: Computation of, rules, 125; presumption of favor in 
terms, 126; when none fixed, performance, 127; of payment, 
see Payment, V. 

Titles to Bearer. See Payable to Bearer. 

Titles transferring immovables, to be transcribed, 531. 

Tolerance, acts by not constitute possession, 497. 

Tradition, 620-622: Tradition essential to passing title, 620; 
assignment equal to tradition, when, 621 ; tradition must 
be by owner, 622; after-acquired title avails grantee, when, 
622; tradition ineffective if act void, 622-S. P.; possession 
lost by, 520; necessary to acquire real rights, 675; necessary 
to constitute pledge, 768; of securities pledged, 791; thing 
belongs to debtor until, 868; in purchase and sale, risks, 
1127; expenses of, to whose account, 1129. 

Transaction. See Compromise. 

Translations: Of documents in foreign language, required, 140; 
rights concerning, 652. 

Transcription of Titles, 531-535: What titles must be registered, 
531; judgments and sales to be registered, 532; effect of 
registration, when, 533; presentation for registry, duty of 
registrar, 534; registration relates back to presentation, 
when, 535; insolvency of grantor, deposit of price, 535-S. P.; 
of alienations and renunciations, 589-§l; necessary to ac- 
quire real rights, 676; of unapparent servitudes, 697; of 
usufruct essential, when, 715; of pledges, who may make 
and how, 800; of Pledges, see Pledges, V. See Begistration. 
See Inscription. 

Transit, right of through other's lands. See Visinage, Til. 

Transmission of action for civil damages, 1526. 

Treasure, 607-610: Definition, disposition of, 607; landowner 
entitled to, when, 608; finds on leased lands, 609; found by 
owner, effect, 610. See Finds. 



430 INDEX. 

[References are to ArticXes.l 

Treasury, preference of liens of Federal, etc., 157'' 

Trees, boundary, rules regarding, 556-558. 

Tribunals. See Courts. 

Trust property excluded from community, 263-III. 

Trusts, Testamentary, 1733-1739. See Wills, XIV. 

Tuition, actions for, prescription, 178-§ 6-VI-VlI; 7d.-§ 7-III. 

Tutors, responsible for minor wards, when, 1621-11. 

U 

Unapparent Servitudes. See Servitudes. 

Unauthorized Agency, 1331-1345: Duties and liabilities of agent, 
1331; liability for wilful interference, 1332-1333; must notify 
owner of business, 1334; duty to continue attention, 1335; 
degree of diligence due, 1336; liaibllity for acts of substitute, 
1337; joint liability of several gestors, 1337; liability for 
risky operations, 1338; owner must reimburse agent upon 
ratification, 1338-1340; reimbursement for aliments, 1341- 
1348; of expenses of burial, 1342-1343; ratification, effect of, 
1344; disapproval by owner, duties, 1344; confusion of own 
and owner's business, effects, 1345. See Gestors. 

Unborn: Law protects rights of, 4; curatorship for, 462. 

Unchastity, as ground of disinheritance, 1744. 

Undivided Things, rights of possessors, 488. 

Undue Payment. See Payment, VII. 

Unilateral relationship, see Relationship; in successions, see 
Successions, Legitimate, I. 

Universal Community, 262-268; see Marriage, IX-2; where ante- 
nuptial agreement void, 258-259. 

Universal Things, defined, 54-11; inheritance and patrimony are 
universals, 57. 

Unskillfulness, professional, damages for, 1646. 

Use: Is real right, 674-iIV; extent of use, 742; determination of 
extent, 743; persons included in right, 744; rules of usufruct 
apply, 745. 

Useful improvements, defined, 63-§ 2. See Improvements, and 
Various Titles. 

Uses, contrary to Code, revoked, 1807. 

Usucaption: As mode of acquiring ownership, 530; thirty years 
possession as title, when, 550, 618; right may be declared 



INDEX. 431 

[References are to Articles.'i 

judicially and registered, 550; shorter possession gives title 
when, 551; who considered present and absent, 561-S. P.; 
tacking possessions, when allowed, 552; causes which sus- 
pend or interrupt usucaption, 553; rules respecting debtor 
apply, 553; three years possession gives title, when, 618; 
want of just title and of bad faith, Id.-S. P.; ten years with- 
out title or good faith, 619; rules applicable to movables, 
619-S. P. 
Usufruct: right to lost by remarriage, when, 225; does not 
annul Indirect possession, 486; is real right, 674-III. 
I. General Provisions, 713-717: Usufruct defined, 713; what 
it may embrace, 714; of immovables must be registered, 
715; extends to accessories, etc., 716; transfer and as- 
signment, 717. 
II. Rights of Usufructuary, 718-728: Right of possession, use, 
etc., 718; usufruct of titles of credit, 719; of bonds and 
securities, how transferred, 720; right to natural fruits, 
721; increase of animals, 722; right to civil fruits, 723; 
extent of right of use, change, 724; use of forests or 
mines, 725; of things consumable, restoration, 726; 
rights of treasure, party-walls, etc., 727; exception to 
above rule, 728. 
III. Obligations of Usufructuary, 729-738: Must inventory 
and give bond, 729; effect of not giving bond, 730; bond 
not required, when, 731; obligation for deterioration, 
732; responsible for expenses and charges, 733; expenses 
of repairs, interest, 734; to pay insurance premiums, 
735; liability for interest, when, 736; destruction of 
subject building, insurance money, 737; subrogation of 
indemnity, when, 737-738. 
IV. Extinction of Usufruct, 739-741: Modes of extinction, 
739; effect of death of parties, 740; in favor of juridical 
person, how extinguished, 741; legacy of, 1688; accretion 
°of between heirs and legatees, 1716. 



Vacant Estates. See Successions, in General, III. 
Vacant land, upon abandonment, 589-§ 2. 
Valuation, of thing wrongfully taken, 1543. 



432 INDEX. 

[References are to Articles.'] 

Value, of mortgaged property as basis of sale, 818. 

Verbal mandate: when admitted, 1290; when not admitted, 1291; 

judicial mandates, 1330. 
Vested rights, defined, effect of laws, Intr. 3. 
Vested or actual right, defined, 74-III, and S. P. 
Vlslnage, rights of, 554-588: 

I. Nocive Use of Property, 554-555: Injm-ious use of prop- 
erty prevented, when, 554; demolition, repairs or se- 
curity required, when, 555. 
II. Boundary Trees, 556-558: Trees on boundary, presump- 
tion of ownership, 556; ownership of falling fruits, 557; 
cutting roots or branches, 558. 

III. Forced Passage, 559-562: Right of passage required, 
when, 559; Indemnity for passage demandable, 560; new 
passage, double indemnity, 561; passages not servitude, 
when, 562. 

IV. Waters, 563-568: Natural waters, artificial drainage, 563; 
escape of conducted waters, rights of lower owner, 564; 
rights to waters of springs, 565; rights to rain and 
river waters, 566; rights of irrigation, 567; indemnity 
to injured owner, 567-S. P.; summary action provided, 
568. 

V. Boundary Lines, 569-571: Delimitation and landmarks 
required, expenses, 569; determination of disputed 
boundaries, 570; joint use of boundary, presumption, 
571. 
VI. Biuilding Rights, 572-587: Rights and limitations of 
ownership, 572; certain buildings may be prevented, 
when, 573-574; projecting eaves, distance between, 575; 
work may be removed, when, 576; consent required for 
certain works, 577; stables, corrals, etc., rules regarding, 
578; use of dividing walls of houses, 579; dividing wall 
on contiguous land, 580; right to use party-wall, 581; 
threatened danger may be prevented or bond required, 
582; furnaces, etc., cannot be against party-wall, when, 
583; constructions injurious to water forbidden, 584; 
diminution of water supply, 585; damages for violation 
of restrictions, 586; right to enter adjoining estate for 
repairs, etc., 587. 
VII. Enclosures, general rules relating to, 588. 



INDEX. 433 

[References are to Articles.'] 

Vis Major, as element in damages, 1058. See Titles ol Various 
Acts and Contracts. 

Void Jm-idical Acts: By incapables, 145-1; when object illegal or 
impossible, 145-11; for want of form, 145-III; for omission 
of required solemnity, 145-IV; when so declared by law, 
145-V; who may plead nullity, 146, 152; judge must declare 
nullity, 146-S. P. 

Void obligations: not novated, 1007; as subject of surety con- 
tract, 148«. See Illicit Acts. See Nullity. 

Void and Voidable marriages. See Marriage, VI. 

Voidable: Juridical acts, for relative incapacity of agent, 147-1; 
for error, deceit, coercion, simulation or fraud, 147-11, 86- 
113; ratification, requisites of, 149; ratification, when unnec- 
essary, 150; what are voidable acts, 147-154; may be ratified, 
148; how ratified, 149-151; must be pleaded, 152; who may 
plead, 152; acts of minors, 154; effect of nullity, 152-S. P., 
153, 157; obligation, confirmed by novation, 1008. 

Volunteers agents. See Unauthorized Agency. 

Voluptuary improvements, defined, 63-§ 1. 

W 

Wages: Actions for, prescription, 178-§ 10-V; for agricultural 
services, preference of payment, 759-S. P. 

Waiver: Of prescription, 161; of aliments not allowed, 404; of 
set-off effective, 1016, 1018; of obligations, see Obligations, 
passim. See Renouncement. 

Walls, right to construct, 588. 

Wards. See Guardianship, Cu'ratorship. 

Warranty: of sales by sample, 1135. See Eviction. 

Waters. See Visinage, IV. 

Weight, payments by, of what place, 949. 

Wells: works causing drainage forbidden, 585; pollution of, 584. 

Widow, Widower, marrying before inventory, 225. 

Wife: obligation to contribute to household expenses, 277. See 
Husband and Wife; Marriage. Married Women. 

Wills: Intervention of Consuls In, Intr. 14; validity of dispo- 
sitions, what law governs, Intr. 14; presumption as to terms 
in, 126; married woman may make, 248-X; succession by, 
see Succession, Testamentary. 



434 INDEX. 

[References are to Articles.] 

Wills, 1626-1769: 

I. Wills in General, definition, 1626. 

II. Capacity to Make a Will, 1627-1628: Who are incapable 
of making a will, 1627; incapacity after making, 1628. 

III. Ordinary Forms of Wills, 1629-1649: 

1. General Provisions, 1629-1631: Three kinds of wills, 
1629; conjunctive wills prohibited, 1630; only certain 
special wills admitted, 1631. 

2. Public Wills, 1632-1637: Requisites of public wills, 
1632; formalities if maker unable to sign, 1633; cer- 
tificate by official, 1634; maker considered qualified, 
when, 1635; when maker deaf, 1636; when makw blind, 
1637. 

3. Closed Wills, 1638-1644: Requisites of closed will, 
1638; when will written by official, 1639; who must 
write closed will, 1640; in what language to be written, 
1640; by whom must be signed, 1640; one unable to 
read cannot make, 1641; deaf-mutes may make, when, 
1642; proceedings after making the will, 1643; proceed- 
ings to open closed will, 1644. 

4. Private Wills, 1645-1649: Requisites of private will, 
1645; publication of will, 1646; confirmation of will, 
1647-1648; language in which written, 1649. 

5. Witnesses to Wills: to public wills, 1635-1; to closed 
wills, 1638-1 V; to private wills, 1645-11; to maritime 
wills, 1656; to military wills, 1660; who cannot be 
witnesses to wills, 1650. 

IV. Codicils, 1651-1655: By whom and how made, effect, 
1651; are independent of previous testament, 1652; ex- 
ecutors may be appointed or substituted by, 1653; revo- 
cation of or by, when, 1654; opening of codicil, 1655. 

V. Special Wills, 1656-1663: 

1 Maritime Wills, 1656-1659: When and how made and 
signed, 1656; by whom written and signed, 1657; dis- 
position of will, 1657; will ineffective when, 1658-1659. 
2. Military Wills, 1660-1663: by whom and how made, 
1660; writing and disposition of will, 1661; will ineffec- 
tive when, 1662; nuncupative will admitted when, 1663. 
VI. Testamentary Dispositions in General, 1664-1677: Ap- 
pointment of heirs and legatees, 1664; limitatlong of 



INDEX. 435 

[References are to Articles.] 

time invalid, when, 1665; interpiretajtion of clauses, 
1666; certain dispositions are void, 1667; certain in- 
definite dispositions valid, 1668; charitable dispositions, 
1669; errors in designation, effect, 1670; division be- 
tween several heirs, 1671; division between Individuals 
and classes, 1672; disposition of residuary estate, 1673- 
1674; disposition of things excluded from instituted 
heirs, 1675; clause forbidding alienation, effect, 1676; 
subrogation for property alienated, 1677. 

VII. Legacies, 1678-1709: Legacy of things not belonging to 
testator, 1678; refusal of heir to comply with directions, 
effect, 1679; legacy of things partly owned by testator, 
1680; legacies of things of certain kind, 1681; legacy 
of specified thing, 1682; legacy of things to be brought 
from certain place, 1683; legacy of thing belonging to 
legatee, 1684; legacies of credits or acquittances of 
debt, 1685; legacies as set-offs to debts, 1686; of aliments, 
includes what, 1687; of usufruct, extent of, 1688; after- 
acquired property, improvements, 1689. 

VIII. Effects and Payment of Legacies, 1690-1707: Effect of 
unconditional legacy, 1690; legatee cannot take posses- 
sion, when, 1690-S. P.; right to legacy pending contest, 
1691; thing bequeathed and fruits belong to legatee, 
when, 1692; interest on \egacies of money, 1693; legacies 
of income or pension, 1694-1696; option of heir or legatee 
to choose thing, 1697-1701; who must execute legacies; 
1702-1704; expenses and risks of delivery, 1705; place 
and form of delivery, 1706; legacies subject to charges, 
1707. 

IX. Lapsing of Legacies, 1708-1709: Legacies lapse, when, 

1708; legacies of things in alternative, 1709. 
X. Accretion Between Heirs and Legatees, 1710-1716: When 
right occurs, 1710; distribution made by testator, 1711; 
conditions of accretion of shares, 1712; when vacant 
share goes to heirs, 1713; beneficiaries take subject to 
charges, 1714; disposition when right of accretion does 
not exist, 1715; accretion of usufruct, 1716. 

XI. Capacity to Take by Will, 1177-1720; Who may take by 
will, 1717; persons not conceived, 1718; who can not 



436 INDEX. 

[References are to Articles.'] 

be named as heirs or legatees, 1719; incapables, inter- 
posed persons, 1720. 
XII. Necessary Heirs, 1721-1725: Who are necessary heirs, 
1721; disposable half of property, 1721; calculation of 
disposable half, 1722; calculation of legitimate half, 1722- 
S. P.; conversion of property, etc., 1723; clause against 
alienation, effect, 1723; legacy to necessary heir, effect, 
1724; spouse and collaterals, how excluded, 1725. 

XIII. Reduction of Legacies, 1726-1728: Partial disposition of 
disposable half, effect, 1726; reduction of, legacies in 
excess, 1727; reduction by division or payment, 1728. 

XIV. Substitution of Heirs and Legatees, 1729-1740: When 
substitution may be made, 1729; terms of substitution, 
1730; substitute subject to charges, when, 1731; recipro- 
cal substitution, effects, 1732; legacies in trust, 1733; 
title of trustee, 1734; inventory and bond of trustee, 
1734; renunciation of legacy, effect, 1735; right of bene- 
ficiary to accretions, 1736; beneficiary takes subject to 
charges, 1737; death of beneficiary, effect, 1738; trusts 
beyond second degree void, 1739; effect of illegal sub- 
stitution, 1740. 

XV. Disinheritance of Heirs, 1741-1745: When heirs may be 
disinherited, 1741; disinheritance, how effected, 1742; 
cause of must be proven, 1743; void if not proved. Id.- 
S. P.; causes of disinheritance of descendants, 1744; 
causes of disinheritance of ascendants, 1745. 
XVI. Revocation of Wills, 1746-1752: Revocation, how ef- 
fected, 1746; way be total or partial, effects, 1747; 
effectiveness of revocation, 1748; effect of opening or 
tearing, 1749; pretermitted heir, effect, 1750; unknown 
heirs, effect on will, 1751; omission or disinheritance 
as to disposable half, 1762. 
XVII. Executors, 1753-1769: Testator may appoint, 1753; cer- 
tain powers may be conferred, when, 1754; heirs may 
require division or possession when, Id.S. P.; duty to 
make inventory, 1755; may require heirs to provide 
means. Id.®. P.; may require presentation of will, 1756; 
duty to comply will and render accounts, 1757; expenses 
of administration, 1758; disallowance of expenditures, 
effect, 1759; executor may contest validity of will, 1760; 



INDEX. 437 

[References are to Articles.] 

testator may confer lawful powers on, 1761 ; must comply 
within one year, when, 1762; execution of will when 
no executor appointed, 1763; cannot transmit or dele- 
gate, may appoint attorney, 1764; powers where several 
executors, 1765; compensation of executor, 1766; when 
executor is legatee, 1767; reversion of forfeited com- 
pensation, 1768; executor as head of household, 1769. 
XVIII. Inventory and Partition, 1770-1779: How and when to 
be made, 1770; what shall be included in inventory, 
1771; may require partition, 1772; prescription of par- 
tition, 1772-§2; partition may be made by agreement, 
when, 1773; must be by judicial decree, when, 1774; 
rules governing partition, 1775; division made by father 
valid, when, 1776; partition of indivisible immovable 
by sale, 1777; what must be brought into the mass for 
division, 1778; reimbursement for expenditures, 1778; 
partial and subsequent partitions, 1779; concealed and 
after-discovered property, 1779; partition only annulled, 
when, 1805. 
XIX. Concealed Assets, 1779-1784: Withheld assets must be 
partitioned when found, 1779; heir withholding shall 
lose rights, 1780; removal of wrongdoer from inventory, 
1781; who may demand penalty, 1782; who benefited 
by sentence, 1782-S. P.; penalty when property disposed 
of, 1783; when accusation of concealment must be 
made, 1784. 
XX. Collations, 1785-1795: Purpose and effect of collation, 
1785; who and what must enter into collation, 1786; 
value when property disposed of, 1787; property from 
disposable half expected, when, 1788; exemption, how 
made, 1789; heir renouncing or excluded must restore, 
1790; "inofficious" share defined, 1790-S. P.; grandchil- 
dren must restore share of parent, 1791; valuation of 
the property brought in, 1792; sundry expenses ex- 
empted from collation, 1793; remuneration of services, 
exempt, 1794; donations by both spouses by halves, 
1795; penalty for failure to bring in, 1780-1784. 
XXI. Payment of Debts, 1796-1800: Estate of heirs liable for 
payment, when, 1796; funeral expenses and masses, 
1797; share of insolvent heir prorated, 1798; separation 



438 INDEX. 

[References are to Articles.'i 

of property of estate and heir, who may require, 1799; 
preferences in payment, 1799; where heir is debtor of 
the estate, 1800. 
XXII. Guaranty of Hereditary Shares, 1801-1804: Right of heir 
limited to his adjudged share, 1801; heirs to indemnify 
each other for eviction, 1802; liability to indemnify 
ceases when, 1803; rules for proportioning indemnity, 
1804. 
Withdrawal: Of member of company, effect, 1404-1407; of suit, 

saves penalties when, 1532. 
Witnesses: As mode of making proofs, 136-IV; where value in- 
volved exceeds one conto, 141; persons not admitted as, 142; 
professional secrecy, 144; to marriage, number required, 
193, 195, 198, 200; to will, cannot be heirs or legatees, 1719, 
see Wills, III-5. 
Women: May be excused as guardians, 414; damages for injuries 
to, 1538, § 2; for wrongs to honor of, 1548-1549. See Husband 
and Wife; Married Women; Marriage. 
Writings, etc., when principal thing, 62-III. 
Written Contracts. See Contracts. See Titles of Various Acts 

and Contracts. 
Wounding, damages allowed for, 1538-1540, 1645. 






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