A hipoteca no financiamento dos sistemas agroindustriais e a proteção da pequena propriedade rural.

Abstract

The rural credit policy for Agroindustrial Systems is closely related to the requirement for guarantees to outline the risks arising from these contracts, with the mortgage as the main instrument to guarantee access to credit. Through it, the creditor protects theirself from a possible default, affecting a property of the debtor to enforced contractual obligations, athwart the execution process, for constituting the contract guaranteed by a mortgage extrajudicial enforcement order. In this execution process, the asset given in a mortgage guarantee may be subject to pledge, culminating in acts of expropriation consisting in the adjudication or judicial alienation of the asset to indulge the rights of the creditor. It turns out that the pledge has a constitutional and legal limitation on the small rural property. Thus, the main goal of this study is to reveal the possibility that the mortgage guarantee in the financing contracts of Agroindustrial Systems may constitute an indirect violation of the constitutional protection of small rural properties. For this, the study was executed using the deductive approach method, employing the observational and bibliographic methods as procedures and indirect documentation as research technique. In the course of the investigation, it was noticed that, while recognizing the need for financial institutions to surround themselves with guarantees against noncompliance in credit concession contracts for the rural sector, the mortgage requirement of small rural properties may result in future pledge of the property in the executive process, with the consequent posterior foreclosure. This leads to a direct violation of the Federal Constitution, which elevated the guarantee of non-pledge ability of small rural property to the category of fundamental right. It was demonstrated that the protection of small rural properties must be guaranteed by the State, and it is up to the State to implement public policies focused on risk-taking in these contracts, aiming at promoting social practices in small rural properties linked to Agroindustrial Systems.