Law 8009/90, named as the Homestead Law, provides for the impossibility to levy execution upon the only residential property owned by the couple or family entity, safeguarding it from levy of execution due to civil, commercial, tax, social security or other debts incurred by the spouses or by the parents or children who are its owners and reside there.
It is true, as it can be seen from the precedents, that the concept has been broadened in some occasions, in which the impossibility to levy execution of a house has been assured even for the debt of an unmarried person, divorced or widowed, as well as in cases in which the debtor does not live in the real estate, but has his subsistence based on the income obtained from its rental, for example.
But this is not the subject matter of discussion in this paper, since we will address here to the very recent decision of the Supreme Federal Court (STF), which in the prevailing vote of Justice Alexandre de Moraes, it was concluded that the levy of execution of a homestead belonging to a guarantor in a commercial lease is constitutional, considering the practical consequences of a decision to the contrary.
The theory established by majority vote resulted from the debate on the scope of item VIII, article 3 of the Homestead Law, according to which the benefit of the impossibility to levy execution in lawsuits filed for obligations arising from a surety granted in a lease agreement is unenforceable.
The Supreme Court was asked to decide whether, in cases of guarantees provided in commercial lease agreements, the only real estate would be also leviable pledged by the guarantor could also be done.
There were many reasons put forward by the Justice-Rapporteur, to whom the levy of execution of the property is constitutional and does not violate the guarantor’s right to housing, such as the free availability of the property right by the guarantor when offering the property in a lease agreement, the lack of legal provision regarding the possibility of levy of execution of the guarantor’s property only in the event of a residential lease and, among others, the established principles of contractual control, such as the objective good faith and honesty.
Alongside such fundamentals, and within the scope of what we propose to discuss, we highlight the application of art. 20 of the Law of Introduction to the Brazilian Law (Law No. 4657/42, amended by Law No. 1365/2018), which established legal consequentialism in Brazilian law, providing that “a decision shall not be made based on abstract legal values without considering the practical consequences of the decision”.
In his vote, Justice Alexandre de Moraes noted that “the impossibility of levy of execution of the homestead of the commercial lease guarantor would have the power to cause serious impact on the freedom of the tenant to undertake“, therefore, understanding why the landlord could require more onerous and bureaucratic guarantees from the tenant, such as the deposit, the surety, the rental guarantee insurance or the fiduciary assignment of investment fund shares.
The leading vote also pointed out that the surety is the least bureaucratic and least expensive form of guarantee for the tenant, in addition to being the safest for the landlord, and that a decision in another sense would create “an economic stimulus to replace the surety in commercial leases for other types of guarantees and would cause profound changes in the market, especially for smaller tenants”, who would face “additional costs and complexities related to the lease of commercial property, which may even make the business unfeasible”.
The highlighted excerpts denote the application of legal consequentialism in the vote.
Notwithstanding the criticism to consequentialism, according to which its application would bring legal uncertainty – which in this case effectively does not occur, since on the contrary, certainty in the rental relations is guaranteed – we have that the judgment under discussion is a typical example of the application of the consequentialist principle, which once applied took into consideration the economic consequences to decide for the strict compliance with the rule prescribed by law.
Therefore, and once again – since in several judgments the STF has used the precepts of legal consequentialism – the Court makes it increasingly relevant in the context of Brazilian law, the judicial valuation of the economic bias for the formation of the judge’s finding, considering from this bias, what the consequences of a decision in the opposite direction would be.
It can be concluded, therefore, that the STF did not use legal consequentialism randomly, indiscriminately and without control, but far from it, it met the criterion of consistency, demonstrating that the decision is in accordance with the applicable legal classification, then followed the criterion of coherence, leaving no doubt that the decision is supported by legal principles, and only finally used the consequentialist argument.
Available at: https://politica.estadao.com.br/blogs/fausto-macedo/stf-a-lei-do-bem-de-familia-e-o-consequencialismo-juridico/
Autor: Maurício Aude • email: mauricio.aude@ernetoborges.com.br • Tel.: + 5565 99981 0853
