Ânimo de novar no direito brasileiro

Abstract

The present work aims to analyze the nuance of the “ânimo de novar” in Brazilian law, a theme that, despite being classic, generates practical concerns, as will be seen in the doctrine set out in the entire text. It was sought, at first, through a historical and comparative research, to investigate the general aspects of the “ânimo de novar” in Brazilian law and its possible connections with regulations from other countries and Roman law, Always returning to Brazilian law, methodological purpose used in the dissertation. After analyzing the general terms of this institute, the aim was to tackle the forms of declaration of the “ânimo de novar” – express or tacit, dissecting, in particular, the hermeneutical difficulty of the tacit declaration of the “ânimo de novar”, wich was segmented into block, in terms of the main doctrinal and jurisprudential controversies on the subject. Leaving the declaration form, the text tends to the interpretation of the “ânimo de novar”, mainly based on the primacy of article 113 of the Civil Code, already including the changes instituted by the Economic Freedom Law (Law no. 13.874/2019) and the recent highlighting the divison between contractual types in the doctrinal scope. In the final chapter, the consequences of the inexistence of the “ânimo de novar” in the specific case were verified, at this point, there was a dissection of the meaning of the expressions existing at the end of article 361 of the Brazilian Civil Code. Also in this final chapter, although inserted in a border area with procedural law, the burden and quality of proof the “ânimo de novar” was verified, linking the practial aspect to the content developed in the research. Without trying to exhaust the exposition of the text, at the end, there was a conclusive synthesis of the main ideas exposed in the essay