THE PROHIBITION OF INHERITANCE CONTRACTING IN BRAZIL AND ITS IMPACTS ON PRIVATE AUTONOMY

Abstract

This article aims to provide some reflections on the prohibition of inheritance agreements in the Brazilian legal system, established in art. 426 of the Civil Code, through a legal-dogmatic approach and a comprehensive legal type. To this end, at first, the relationship between contracts, private autonomy and private property is analyzed. Below, the main arguments used to justify the prohibition of inheritance contracts in Brazil are exposed, contrasted with the characteristics of contracts in general, especially those related to uncertainties, risks and inevitable incompleteness typical of contractual relationships. Next, a comparison is made between aleatory contracts and inheritance contracts, based on the rules given by the Civil Code to the category of aleatory contracts. At the end, the reasons that demonstrate the urgency of the discussion about the inheritance contracts and the need for changes in the Brazilian succession discipline are summarized.