Of the excusable and recognizable error in the article 138 of CC/02: comparative study of civil and roman law

• Grant number: 19/14869-5
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: October 01, 2019
• End date: September 30, 2020
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Eduardo Cesar Silveira Vita Marchi
• Grantee: Sergio Lima Dias Junior
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The essence of a legal transaction is the volition. For this to be perfectly formed, it is necessary, therefore, that the will be expressed freely and consciously. Not always, however, it is so. In certain cases, it may be born of an addiction, like error, which consists, briefly, in a false evaluation of reality. In these cases, when it is verified that the volunteers of the agent is tainted, the legal transaction becomes voidable. Yet, not all errors lead to annulment, since each legal system establishes the characteristics that authorize the undoing. Brazilian Civil Code of 2002, in its Article 138, has brought the requirements to do so. Nevertheless, the not so clear wording gave rise to doctrinal divergence about the consecrated assumption, which point sometimes to the excusable error and sometimes to the recognizable error, if not both. The present study seeks to elucidate the position adopted by the CC/02 and to compare it with the Roman solution, in order to clarify the practical consequences of the mentioned assumptions.