A inconstitucionalidade da penhora do bem de família do fiador de contrato de locação.

Abstract

This paper deals with the institute of the family property and the possibility of the guarantor of the leasing contract to have his single residential property extended for the satisfaction of the contract, analyzing the constitutionality (or not) of the provision linked to this. The family property is a very important legal institution that aims to protect residential property of a couple, family or any other entity, making it unattachable for their debts, subsequent to the institution of the residential property as family property. Law 8.245/1991, article 82, section VII added to Article 3 of Law 8.009/1990, that deals with hypotheses in which the characteristic of the unseizability of the family property will be removed. This item VII says that the family property of the guarantor of a leasing contract may have his residential property extended to satisfy that contract. This rule generates, until today, discussions about its constitutionality, owing to the confrontation with the constitutional principles of human dignity and equality, as well as the social right of housing. Thus, this study aims to examine the constitutionality of the referred legal provision in the light of the constitutional principles and standards, in order to pacify the doctrinal and jurisprudential understanding and to give more legal safety to the Brazilian citizen. To achieve these goals, the deductive method as a method of approach, the historicalevolutionary method and procedure and the method of indirect documentation as a research technique are used. After the doctrinal analyze and the analyze of the jurisprudence dealing with the issue, it will be proved that the rule which provides the removing of the unseizability of the family property, belonging to the guarantor of the leasing contract, is unconstitutional, considered to be completely in conflict with the principles and constitutional norms as mentioned.