Análise crítica da extensão da proteção do bem de família legal ao direito do devedor fiduciante

Abstract

This study aims to realize a critical analysis about the judicial ruling of the Superior Court of Justice, in the judgment of Special Appeal No. 1.677.079-SP, which determined the extension of homestead allowance protection, granted by Law nº 8.009/90, to the trustor’s right. In this sense, one offers an alternative to the understanding adopted by the Superior Court, in order to ensure a more balanced legal execution, considering particularities brought by the minority doctrine about the attachment of trustor’s rights, as well as the bidder’s real right of acquisition, without forgetting the trustor’s entitlement to the right of possession. Finally, it is important to point out the necessity of awareness of court practice regarding fiduciary alienation, once there are several controversies about fiduciary transactions’ rulings, specially, concerning to judicialization of execution in the face of third parties’ interests.