Direito Civil - Aula #21 - Fundação (É isso!)

Summary

This video script explores the concept of a foundation as a legal entity, explaining its structure, creation, and purpose. A foundation is described as a legal personality attached to assets, allowing it to own, buy, sell, and engage in civil acts, distinct from human beings. The script covers the creation process, including the institution phase (via public deed or testament) and the constitution phase. It also addresses the foundation's objectives, funding, supervision by public authorities, and potential causes for its dissolution. The legal and operational details of a foundation, including its non-profit focus and asset allocation upon dissolution, are thoroughly explained.

Takeaways

• 😀 A foundation is a legal entity that has its own legal personality, even though it is not a human being. It can own property, engage in civil acts, and have legal rights and obligations.
• 😀 Foundations are created to serve a specific non-profit purpose. They are not intended to generate profit for the founder or any individual.
• 😀 The process of creating a foundation consists of two main phases: institution and constitution. The institution phase involves the creation of the foundation, while the constitution phase involves formalizing it through registration and establishing its bylaws.
• 😀 A foundation can be created during a founder's lifetime (inter-vivos) through a public deed, or after their death (causa mortis) through a will or testament.
• 😀 The founder must allocate free and unencumbered assets to ensure the foundation's operational sustainability. This could include property, money, and other assets.
• 😀 The Ministry of Public (MP) is responsible for overseeing and monitoring foundations to ensure they are operating in compliance with the law, particularly when they benefit from tax incentives.
• 😀 A foundation must have a clear and lawful non-profit purpose. The law provides a list of acceptable purposes, including social assistance, education, health, environmental protection, and more.
• 😀 If the foundation's assets are insufficient to fulfill its purpose, the founder can designate another foundation to take over the assets, or the Ministry of Public can make this decision.
• 😀 A foundation can be dissolved if its purpose becomes illegal, impossible, or useless, or if the foundation has reached its predetermined expiration date.
• 😀 Upon dissolution, the foundation’s assets are transferred to another foundation with a similar purpose or to the public treasury. They cannot be returned to the founder or their heirs.
• 😀 The founder can directly draft the foundation's statute, or they may designate another person to do so. In the case of a foundation created after the founder's death, a designated individual, often the constituted person, will oversee this process.

Q & A

What is a foundation (fundação) in legal terms?

A foundation is a legal entity, or 'thing with personality,' which has rights and obligations similar to a person. It is created to manage assets dedicated to a specific non-profit purpose, such as social assistance, education, or cultural preservation.

How does a foundation differ from a regular property or asset?

Unlike regular property, which is merely a thing, a foundation has legal personality, meaning it can perform legal actions such as buying, selling, or receiving donations. This allows it to act like a person, despite being an entity with no human existence.

What are the two main phases involved in creating a foundation?

The two main phases are the **Institution** phase, where the founder (instituidor) creates the foundation either through a public deed or a will, and the **Constitution** phase, which involves registering the foundation and ensuring its operation according to the established legal framework.

Can a foundation be created after the founder's death?

Yes, a foundation can be created after the founder’s death through a will. The assets intended for the foundation must be clearly designated in the will, which will guide its creation posthumously.

What is required during the institution phase of creating a foundation?

During the institution phase, the founder must provide clear assets—such as money, property, or vehicles—that will be allocated to the foundation. The founder also specifies the foundation's purpose, ensuring that these assets are sufficient to support its activities.

What types of purposes can a foundation serve?

A foundation can serve a variety of non-profit purposes, including social assistance, culture, education, environmental protection, historical preservation, health, human rights, and more. These purposes must be explicitly defined when the foundation is created.

Why is the Public Ministry (Ministério Público) involved in overseeing foundations?

The Public Ministry oversees foundations to ensure that they operate transparently and for their intended non-profit purposes. It helps prevent misuse of the foundation's assets and ensures compliance with legal regulations, especially when foundations benefit from tax incentives.

What happens if a foundation’s assets are insufficient to fulfill its purpose?

If a foundation's assets are insufficient, the founder can designate another foundation to take over, or if not specified, the Public Ministry will decide on the allocation of assets to another suitable foundation.

What are the possible reasons for the dissolution of a foundation?

A foundation can be dissolved for several reasons: if the stated purpose becomes impossible, illegal, or useless, if the purpose expires (based on a set time period), or if the foundation no longer serves a valid or relevant purpose.

What happens to the assets of a foundation when it is dissolved?

Upon dissolution, the assets of a foundation are transferred to another foundation with a similar non-profit goal or, if no suitable foundation exists, they are directed to the public treasury to ensure they continue serving a social purpose.