Article 877 of the Civil Code governs the matter relating to sales from parents to children or from grandparents to grandchildren.
This article provides:
“1. Parents and grandparents may not sell to their children or grandchildren unless the other children or grandchildren consent to the sale; the consent of the descendants, when it cannot be given or is refused, may be judicially supplied.
2. A sale made in breach of the preceding paragraph is voidable; the annulment may be requested by the children or grandchildren who did not give their consent, within one year from the date they became aware of the contract, or from the end of their incapacity, if they are legally incapacitated.
3. The prohibition does not cover a datio in solutum made by the ascendant.”
The purpose of this rule is to prevent situations in which parents or grandparents, under the guise of a sale, might secretly favor certain children or grandchildren through disguised donations.
Consequently, if a sale is carried out without the required consent, that sale is voidable by the children or grandchildren who did not consent. Under paragraph 2 of the aforementioned article, they may request a declaration of annulment of the sale within one year from the moment they became aware of the transaction. This one-year period is a limitation period (prazo de caducidade), meaning that once it expires, the right to challenge the validity of the sale is extinguished. It also means that the burden of proof lies with the party invoking the right, who must demonstrate both its existence and that it is being exercised within the legal timeframe.
If annulment is granted, under Article 289(1) of the Civil Code, everything that has been provided must be returned, or, if restitution is not possible, the equivalent value must be reimbursed.
There is debate in legal doctrine and case law regarding whether an analogical or extensive interpretation of Article 877 of the Civil Code is admissible — specifically, whether the rule should also apply to sales made to the spouses of children or grandchildren. The reasoning behind this broader interpretation is that it prevents the indirect circumvention of the prohibition established by Article 877.
A different situation arises when a sale is made, for example, to the boyfriend or girlfriend of a daughter or granddaughter, regardless of whether the couple later marries.
Indeed, when a sale is made to a granddaughter’s boyfriend, it must be concluded that, at the time of the sale, there is no degree of kinship between the seller and the buyer. Since the existence of such kinship is an essential requirement for annulment under Article 877, the absence of consent does not render the sale voidable, and thus, the transaction is valid.
However, it may always be alleged — if that is the case — that the transaction is a simulated contract. In such a case, the requirements for a successful claim would differ from those applicable to annulment based on lack of consent under Article 877 of the Civil Code.
This situation of a simulated contract may arise if the sale to the daughter’s or granddaughter’s boyfriend effectively conceals a donation to the seller’s daughter or granddaughter — the buyer’s girlfriend — who, by means of this subterfuge and through a subsequent marriage under the regime of community of property, becomes the owner of the asset, thereby circumventing the requirement of Article 877 of the Civil Code concerning the need for descendants’ consent for the validity of the transaction.
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