Análise da constitucionalidade da penhora do bem de família do fiador nos contratos locatícios.

Abstract

The present work deals with the institute of the good of family with the perspective of the possibility of the guarantor in a leasehold contract to have its sole immovable property impaired in the face of the need to satisfy the debt related to the main contract (lease), analyzing the consonance of the said situation with the basic principles of the Federal Constitution of 1988, maximum norm in hierarchy in the national legal system. The family property is a legal institute of significant social significance, since is intended to protect the property of the family entity, having the power to make it unenforceable for the debts of its owner, as long as it can be classified. Law n° 8245/1991, in its article 82, added item VII to article 3º of Law n° 8.009/1990, which deals with the situation in which the insurerability of the guarantor's family property in a lease can not be enforceable against the renter's debt. Responsible for heated debates, this rule still generates controversy mainly regarding the doctrinal scope, with specificity to the doctrinators who follow the current of the called Civil Constitutional Law, generating questions as to its constitutionality and compatibility with the legal system, given its potential to confront constitutional principles of the dignity of the human person and isonomy, as well as such as the social right to housing. Thus, the present work aims at analyzing the compatibility of the said legal provision with the principles and norms constitutional provisions. To achieve these objectives, the hypothetical-deductive method is used as a method of approach, the method of indirect documentation as a research technique, as well as the historical-evolutionary method in the analysis of legal institutes important to the subject, such as family and good family's. After doctrinal and jurisprudence on the subject, it is desired to prove the incompatibility of article 3º, item VII, of Law n° 8.009/90 with the constitutional system in force in that country.