A impenhorabilidade do bem de família do fiador nos contratos de locação : uma análise à luz dos princípios constitucionais

Abstract

The purpose of this paper is to show the picture of unseizability good of the family of the guarantor to the contracts of lease as the institute of great social importance, which stems from constitutional protection, starting from the assumption that housing is a fundamental right of 2nd generation or social right. Object of controversy among lawyers, the family of guarantor of good saves important thoughts concerning the constitutional principles of human dignity, of equality, Social Solidarity and Social Function of Property. It also covers the new general principles of the new Civil Law, Civil Law Constitutional hodienarmente called, as Principle of Good Faith aims, the principle function of the Social Contract and the Principle of Equivalence Contract, which confronted with the classical principles, as The principle of freedom of choice, the principle of relativity and the principle of contract binding the Contract. In spite of these postulates and the constitutional requirement of compliance with the new optical civil constitution, the legislature established the item VII of Article 3 of Law No. 8.009/90 establishing the attachment of the property for residential obligation of bail granted in the lease. The monographic study allowed draw some conclusions, among them the need to protect the housing of the guarantor, not only because of special protection that the state grants the family, but especially the defense of human dignity. The law must be interpreted and applied taking into account the social purposes for which it is addressed and the requirements of the common good. At the end, will stimulate the debate on the reasonableness of the forecast cool, it is encouraging our lawyers to defend the proportionality in their trials, in homage to the ideals of social justice.