Collation and Irresponsible Legislature: on Succession and Legal Certainty Hiccups

Abstract

Contemporary Brazilian Civil Law undergoes a moment of holistic metamorphoses. Amidst the turns dear to this vigorous context, traditional categories of Private Law are reconsidered, as to their grounds, dynamics and ends. This is however not the case of the Law of Successions, which has remained somewhat insulated. In spite of such a tendency towards closure, norms governing Succession must be called into question, especially in respect to collation, which synthetize aspects of each and every branch of Private Law. Legal texts that preside collation are, nonetheless, errant and utterly unsatisfactory, since not only the values pursued by legislators, in an authoritarian-paternalistic fashion, have fallen behind the main concerns of contemporary decision-makers and scholars, but also five subsequent Codes on either Civil or Procedural Law have dealt with it in surprisingly different ways. As a result, Brazilian Civil Law faces major legal certainty – both formal as substantial – issues, chiefly regarding the economic evaluation of assets subject to collation. This problem is severely aggravated by drafts currently under debate in the Legislature in respect to succession taxes, that resets discussions concerning succession planning, to which stability regarding collation is paramount. This article proposes a scrutiny of the rules and principles governing collation and calls into question the notorious problem of legal (un)certainty caused by the unstoppable legislative frenesi related to it.