A purgação da mora no contrato de alienação fiduciária em garantia de bem móvel

• Autor(a) principal: Rodrigues, Mádson Ottoni de Almeida
• Data de Publicação: 2019
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/22274
• topic: Alienação fiduciária; Bem móvel; Purgação da mora; Locação de imóveis - Brasil; Fiduciary alienation; Movable property; Purgative of arrears; Landlord and tenant - Brazil; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

This thesis is dedicated to the purgation of the delay in the fiduciary alienation contract in the guarantee of movable property. Given the new paradigms of the contractual law, notably the social function of the agreement, the objective good faith and the fair equivalence of benefits, it is legitimate the expectation of the debtor to purge the arrears, paying the overdue instalments plus the charges provided for in the contract. Financial institutions that are driving national development need to connect with the constitutional value of solidarity and with the principles on which the economic order is founded, including consumer protection. The extinguishing right of the contract is not absolute, and it is necessary to ascertain, in an objective manner, whether the default compromises the cause of the legal transaction, as an economic purpose of the agreement, or the usefulness of the benefit to the fiduciary creditor, prevailing, in any case, the principle of conservation as a rule for the interpretation of the contract. The purgation of arrears both gives the fiduciary creditor the receipt of the agreed instalment, as it allows the paying debtor to fulfil the obligation to pay. Looking at the judge's role in the search for contractual balance and in the preservation of the covenants, it is proposed: to require the fiduciary creditor, author of the search and seizure action, to base the option for the rescission of the contract; to grant the trustor debtor, through the general power of prudence, the right to purge the arrears. In the end, as the case law prohibiting the purging of arrears by the debtor, and inspired by the law governing the leasing of the urban real estate in Brazil, there is a proposal for a legislative amendment in the wording of paragraph 2 of article 3 of the Decree-Law No. 911/1969