Lei de Introdução - Aula 10 - Costumes - Art. 4º Decreto-lei 4657/42

Summary

This lecture on Brazilian law explains the concept of 'costumes' (customs) as outlined in Article 4 of Decreto-Lei 4657/42. It explores how judges use customs to fill legal gaps when laws are silent, categorizing them into three types: Costumes Secundo Legem (authorized by law), Costumes Preter Legem (not written in law but practiced in society), and Costumes Contra Legem (contrary to the law). Through examples like post-dated checks and rural practices, the lecture emphasizes the importance of understanding the role of customs in legal decision-making and their limits in relation to the law.

Takeaways

• 😀 Judges should use analogy, customs, and general principles of law when the law is silent on an issue, in that specific order.
• 😀 Custom is defined as a practice that is consistently followed by a society, a group, or a profession, even if not written in law.
• 😀 Three types of customs are recognized in law: secundo legem, preter legem, and contra legem.
• 😀 Customs secundo legem are those authorized by law, such as the example in the Civil Code where local customs may dictate payment terms in rental contracts when not specified.
• 😀 Customs preter legem are those not specified by law but are commonly practiced in society or certain professions, such as the custom of receiving a puppy from breeding a dog.
• 😀 Examples of customs preter legem include arrangements like fishermen receiving fish after assisting in the netting process, or neighbors sharing pork after helping to fatten it.
• 😀 Customs contra legem are practices that contradict the law, and despite being widespread, they cannot be used in legal decision-making, like not using seatbelts or driving the wrong way down a street.
• 😀 Even when a custom contra legem is widely practiced, judges must still enforce the law, as demonstrated by traffic violations or other illegal behaviors that customs can't justify.
• 😀 The concept of customs contra legem can affect the applicability of the law in certain social contexts, such as when a crime like adultery becomes socially accepted despite being legally punishable.
• 😀 The article stresses that the law must be applied even when customs are in conflict with it, highlighting the importance of legal principles over societal practices.

Q & A

What is the main purpose of Article 4 of Decreto-Lei 4657/42?

Article 4 of Decreto-Lei 4657/42 addresses how judges should handle situations where the law is silent or lacks specific provisions, guiding them to use analogy, customs, or general principles of law to resolve legal gaps.

What order should judges follow when the law is silent on a matter?

Judges should follow this order when resolving legal gaps: first, they apply analogy; second, they consider customs; and third, they use general principles of law if necessary.

What are customs in the context of law?

Customs in law refer to practices that are habitually followed by society, specific groups, or professions, even though they are not codified in legal texts. These practices are considered norms and may be used by judges when the law is silent.

What is the difference between customs 'secundum legem' and customs 'praeter legem'?

Customs 'secundum legem' are those recognized or authorized by law, while customs 'praeter legem' are those not addressed by law but still considered valid as long as they don’t conflict with legal provisions.

Can you give an example of a 'secundum legem' custom?

An example of a 'secundum legem' custom is the rule in the Brazilian Civil Code that if rental contracts do not specify a payment date, the judge can determine the payment date based on local customs.

What is a 'praeter legem' custom?

A 'praeter legem' custom is a practice that is not addressed by law but is still accepted and used by society, like the customary practice of giving a puppy to someone who lends their dog for breeding.

What are customs 'contra legem'?

Customs 'contra legem' are practices that directly contradict the law. These customs cannot be applied by judges, as they go against legal norms, such as ignoring safety laws like seatbelt usage or driving against traffic regulations.

What happens when a custom contradicts the law?

When a custom contradicts the law, it cannot be used by judges. In extreme cases, when such a custom becomes deeply ingrained in society, the law may lose its applicability, as seen with the decriminalization of adultery before it was officially repealed.

Can customs ever override written laws?

No, customs that contradict written laws cannot override them. However, customs that are widely accepted and recognized may influence how a judge interprets the law, provided they do not directly conflict with legal requirements.

Why is the distinction between the different types of customs important in law?

The distinction is important because it helps judges decide how to appropriately use customs to fill legal gaps. Customs 'secundum legem' are legally recognized, while 'praeter legem' and 'contra legem' customs require careful consideration, as the latter cannot contradict the law.