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Direitos reais sem realidade? Breves reflexões sobre a crise e a sustentabilidade da(s) teoria(s) realista(s) na teoria geral do direito das coisas

BOOKS AND ACADEMIC ARTICLES 2019 in Revista de Direito Imobiliário

In this article, we aim to study the dialectic dynamics between the creativity of the legislative power and the constitutive role of doctrine in the construction of real estate law in Portugal, investigating particularly the compatibility of the realist approach(es) with the current legislative configuration of the Portuguese real estate law when combined with the densification contributed by the doctrine. In this vein, we will firstly seek to identify the margin of the liberty of conformation that the legislative power possesses in the task of regulation and construction of real estate law, aiming to determine the ordinary legislator´s legitimacy in creating rights in rem that may not be not based on any in rem relationship in the perspective of the realist approach(es). After that, we will analyse especially the promissory contracts with real effectiveness and the pre-emptive rights with real effectiveness (including the legally attributed pre-emptive rights), intending to understand if these figures really represent (or not) cases in which we can testify the presence of “rights in rem without in rem relationship” in the Portuguese legal system. In the end, basing on the conclusions achieved beforehand, we will try to demonstrate the importance of a systematically more coherent understanding of the issue at hand in the defence of the realist approach(es) de iure condito, and reveal the practical influences of this understanding on solving the related problems of tort and breach of contract.

Keywords: Rights in rem – Obligations – Promissory contracts – Pre-emptive rights – Tort and breach of contract.

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Hong Cheng Leong