Possession as an autonomous right and its social function in Brazilian law

Abstract

The possession is provided for in article 1,196 of the Civil Code as the exercise of fact and must be protected as an autonomous right by the legal system. While it is true that possessory protection was historically conceived within the defense of property, it detaches itself when specific regulations are guaranteed by the legal system. The recognition of its autonomy as a concession to necessity is increasingly practiced by our Brazilian Courts, justifying an essay aimed at promoting an in-depth study of the subject in light of the methodology of civil-constitutional law. As will be evident throughout the text, as a result of the doctrinal and jurisprudential research, considering its eminently factual situation, the interest contained in possession is only legitimized and becomes worthy of legal protection to the extent that it upholds its social function, linking itself to constitutionally protected values such as work, housing, and health, expressions of human dignity. For this reason, instruments that consecrate this autonomy of possession are identified in the Civil Code, as a contribution to the deepening of the debate, as evidenced in the treatment given to adverse possession, especially extraordinary adverse possession. In the same vein, the debate on so-called commons is encouraged, whose access is independent of ownership.