Constituto-possessório

Por
Pedro Santos
-
732
4013

QUESTÃO ERRADA: No constituto-possessório, subentende-se a tradição quando o transmitente continua na posse do bem.

CORRETA. O constituto possessório é justamente isso: o vendedor continua na posse do bem, mas agora em nome do comprador, que é o proprietário. Art. 1.267. A propriedade das coisas não se transfere pelos negócios jurídicos antes da tradição.

Parágrafo único. Subentende-se a tradição quando o transmitente continua a possuir pelo constituto possessório; quando cede ao adquirente o direito à restituição da coisa, que se encontra em poder de terceiro; ou quando o adquirente já está na posse da coisa, por ocasião do negócio jurídico.

QUESTÃO ERRADA: A posse das coisas móveis não pode ser transmitida pelo constituto-possessório.

(Enunciado 77 da I Jornada de Direito Civil do CJF/STJ – A posse das coisas móveis e imóveis também pode ser transmitida pelo constituto possessório.)

CONSTITUTO POSSESSÓRIO X TRADITIO BREVI MANU

Constituto possessório, também conhecido cláusula constituti, trata-se de uma operação jurídica que altera a titularidade na posse, de maneira que aquele que possuía em nome próprio, passa a possuir em nome alheio. É modo de transmissão de posse em que o transmitente conserva a posse imediata.

Ex: vendo uma casa que possuía em nome próprio, e coloco no contrato de compra e venda uma cláusula que prevê minha permanência na casa na condição de locatário, ou seja, passo a possuir a casa em nome alheio. Essa cláusula é acontituti. O inverso do constituto possessório ocorre quando a pessoa que possui em nome alheio passa a possuir em nome próprio.

Ex: o locatário que possui a casa em nome alheio compra a casa passando a possuir em nome próprio, neste caso a cláusula será da traditio brevi manu.

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QUESTÃO CERTA: Configura-se constituto-possessório quando o proprietário da coisa aliena esse direito e permanece na posse direta da coisa, de modo que aquele que possuía em seu próprio nome, passa a possuir em nome de outrem.

Constituto possessório: Trata-se da operação jurídica que altera a titularidade na posse, de maneira que, aquele que possuía em seu próprio nome, passa a possuir em nome de outrem. Contrariamente, na “traditio brevi manu”, aquele que possuía em nome alheio, passa a possuir em nome próprio.

A aquisição derivada se dá através de um ato negocial, um negócio jurídico. Existem duas cláusulas que negociam o negócio jurídico que são muito comuns em provas: traditio brevi manus e o constituto possessório. O traditio brevi manus é quando o possuidor direto se torna possuidor pleno. Exemplo: locatário compra o imóvel que ele aluga. Já o constituto possessório é uma cláusula que faz com que o possuidor pleno se torne mero possuidor direto. Exemplo: o proprietário doa para uma outra pessoa um imóvel, com reserva de usufruto.

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Pedro Santos

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