A CONSTITUIÇÃO ECONÔMICA E A FUNÇÃO SOCIAL DA PROPRIEDADE: O CASO DA PENHORABILIDADE DO BEM DE FAMÍLIA DO FIADOR DE CONTRATO DE LOCAÇÃO IMOBILIÁRIA PARA FINS DE MORADIA

Abstract

This dissertation carries out a study of the pledge of the family property of the guarantor of the real estate lease for housing purposes in the light of the constitutional principles of the economic and financial order. The aim of this paper is to address the economic analysis of the social function of private property and the attachment of the family property of the guarantor of the lease. In constitutional terms, it focuses on the principle of private property and the principle of the social function of property, described in items II and III of Article 170 of the Constitution of the Republic. Infraconstitutionally, attention turns to articles 82 of Law 8,245 of 1991, which introduced item VII of article 3 of Law 8,009 of 1990 into the national legal system, which provides for the immunity of the family property. Both the legal and constitutional provisions, as well as the social right to housing, inserted in the constitutional text by Amendment No. 26/2000, as well as the principle of isonomy (equality) and the dignity of the human person, comprise the legal protagonists of this dissertation that has, also, an economic look. The proposed hypothesis is fully consistent with the content of social rights and the principles of economic order printed in the Federal Constitution. The concept of bail, its requirements, characteristics, effects, modalities and extinction were also analyzed. The whole question based on the principle of material equality was examined, with regard to the different treatment between guarantor and guarantor, the constitutional guarantee of housing, the effectiveness of the constitutional rule. The market, utilitarian, pragmatic and consquencialist aspect of the judicial decision was also raised, which effects could be observed in the long term, the task of the economic analysis of the law. The two interpretations of Article 82 of Law 8,245 of 1991 are also compared to the premises of rational maximization, balance, transaction costs, efficiency and norm as an incentive structure. The result obtained and which can be confirmed by research that shows the preference, at least in the state of São Paulo, for the use of the personal guarantee as the main and most used to endorse the lease, since in almost every month it surpassed all other modalities provided for by law and permitted to contractors. According to the hermeneutics proposed by the Economic Analysis of Law, methodological individualism, transaction costs and efficiency are central 12 concepts from which Law is understood. Efficiency, in the economicist conception, is closely linked to the scarcity of resources and to the verification of the trade off operated in its allocations. At this point, it appears that the Federal Supreme Court went well in this direction, as it sought to maintain the viability of such an important market for those who do not have their own property and provided easier access for those who cannot use another form of guarantee, as the bail has been shown to be less costly.