A penhora do bem de família do fiador em contrato de locação: uma análise sobre a possibilidade de superação dos precedentes dos Tribunais Superiores

Abstract

This research will deal with the attachment of the guarantor's homestead in a lease, allowed by art. 3, VII of Law no. 8009/90 (LBF). Within this scenario, the work investigates the possibility of overcoming the understanding of the Superior Courts, notably the Federal Supreme Court (STF) in RE 407.688/SP, the first judgment in which it was decided on the constitutionality of the attachment of the guarantor's homestead. To do so, it uses the methodology of theoretical research, with the study of the relevant bibliography on the subject of the unseizability of the homestead and judicial precedents. In addition, the jurisprudence of the STF and the Superior Court of Justice (STJ) on the issue and data regarding the housing deficit are analyzed. Thus, after a critical analysis of the ratio decidendi identified in RE 407.688/SP, we sought to demonstrate that the arguments used by the Ministers to allow the attachment are not justified. In this sense, it is possible to overcome RE 407.688/SP and, consequently, RE 612.360/SP (Theme 295) and Precedent 549 of the STJ, considering that all are merely persuasive precedents. Thus, it is argued that the attachment of the homestead violates the guarantor's right to housing, also violating isonomy and proportionality, with other more effective means to guarantee the lease agreement.