Do negócio fiduciário à fidúcia

• Autor(a) principal: Oliva, Milena Donato
• Data de Publicação: 2013
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9270
• topic: Contract; Fiduciary ownership; Separate estate; Trust; Fiducia; Negócio fiduciário; Titularidade fiduciária; Propriedade fiduciária; Patrimônio separado; Fidúcia; Trust; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL

This thesis studies fiduciary contracts and their potentials in Brazilian law, especially when they are associated with the technique of separate estate. Although Brazilian law already deploys fiduciary ownership an essential element of the fiduciary contract and separate estate as a mean to regulate many activities, it does not lay down a legal model enabling people to use these techniques for general purposes. Therefore, still lacks in Brazil a legal framework similar to the trust as described by The Hague Convention on the Law Applicable to Trusts and on their Recognition. Attempts to incorporate this legal model in Brazilian law have not been successful so far; therefore, Brazilian legal framework remains fragmented. In this context, the thesis examines the current regulation of the fiduciary contract in Brazilian Law, and the benefits that would result from the introduction of fiducia, understood as a comprehensive legal model combining the techniques of fiduciary contract and separate estate. To this end, the thesis investigates (i) the admissibility of fiduciary contracts in Brazilian law; (ii) the rules applicable to it; (iii) the stipulation of resoluble ownership in fiduciary contracts and the stipulation in these contracts of inalienability, unseazability and incommunicability clauses; (iv) the potentials and limitations of fiduciary contracts in Brazilian law; (v) the legal regulation of trusts as they are described by the Hague Convention; (vi) the use by Brazilian legislator of the legal technique of separate estate combined with fiduciary ownership; (vii) the adoption by Brazilian law of fudicia as the type of contract that will enable people to use the techniques of fiduciary ownership and separate estate; (viii) fiducia as a mean to incorporate in Brazilian law the essential elements of the trust described by the Hague Convention; and (ix) the importance of fiducia as a mean to fill in several gaps of the Brazilian law.