Fiança prestada sem anuência do fiador em parcelamento extrajudicial de débito ajustado entre locador e locatário em contrato de locação empresarial

• Autor(a) principal: Costa, Nathan Cabral
• Data de Publicação: 2020
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Repositório Universitário da Ânima (RUNA)
• Texto Completo: https://repositorio.animaeducacao.com.br/handle/ANIMA/5639
• topic: Locação de imóveis; Aval e fiança; Direito empresarial

OBJECTIVE: To analyze the validity of the guarantee provided without the consent of the guarantors, when the lessor and the lessee adjusted the extrajudicial installment payments for defaulted rents in a business lease. METHOD: As a method, qualitative, exploratory, bibliographic and documentary research was classified, using, to obtain data, doctrines, jurisprudence and legislation relevant to the matter. RESULTS: The surety is understood as a personal guarantee that occurs when a third party is obliged, before the creditor, in the satisfaction of the credit assumed by the debtor when it does not perform its performance. Such type of guarantee has applicability in the scope of the lease contracts, with express mention in the Tenancy Law (Law nº 8.245/1991). Many indoctrinates claim that the provision of bail would, as a scope, have the existing trust between the debtor and the third party who assumes the obligation, however, the issue becomes controversial when it is sought to verify the maintenance or not of the guarantee contract without the consent of the guarantor. The main findings consisted of an understanding of the importance of guarantees in the lease, emphasizing that the guarantee is a mandatory guarantee, regulated by the Civil Code of 2002 and the Tenancy Law, with the main rule being the need to give in writing, without admission extensive interpretation. CONCLUSION: Although there is no express mention in the current legislation, when extrajudicial installments occur, the jurisprudential understanding adopted by the Superior Court of Justice allows us to assure that, if it is proven that the agreement between landlord and lessee is a moratorium and, there is no consent of the guarantor, he has no obligation in the relationship previously agreed. However, when it is verified that the agreement is a mere debt installment, without legal change of the parties and the object of the contract itself, the guarantee is maintained, even without the guarantor's consent in relation to the deal carried out.