A penhora e a expropriação de bem indivisível: A proteção do coproprietário não responsável pela dívida e os impactos na fixação do preço vil para a alienação do bem

Abstract

The 2015 Code of Civil Procedure brought significant innovations with regard to the seizure of indivisible assets, specifically in cases where it is found that there are co-owners of the asset under attachment who are not responsible for paying the debt under execution. The novelties brought in by the new code are set out in article 843, and are as follows: i) the possibility of full sale of the indivisible asset in any case of co-ownership, no longer limited to that arising only from the marriage regime; ii) the spouse's or co-owner's right of preference in the auctioning of the asset on equal terms with interested third parties; and iii) the prohibition on selling the asset for an amount that is not sufficient to guarantee the co-owner or non-debtor spouse the amount equivalent to their share calculated on the appraisal value. However, with regard to this last hypothesis (iii) there is a certain regulatory obstacle. This is because, by allowing the property to be sold for up to 50% of the appraised value, the sole paragraph of art. 891 of the CPC ends up making it possible that, in certain cases, the proceeds of the sale will not even be enough to safeguard the value equivalent to the share of the co-owner who is not responsible for the debt (843, § 2, CPC), let alone to guarantee the payment of court costs, legal fees and settle, even partially, the credit being enforced. For this reason, the aim of this paper is precisely to construct an interpretation that seeks to reconcile this apparent regulatory inconsistency. To this end, it will use a deductive research method based on a bibliographic analysis of secondary sources such as books, articles, specific legislation and court rulings. In this way, the work will be conducted using a qualitative approach aimed at ascertaining the normative and jurisprudential guidelines on the subject, in order to ultimately arrive at the best alternative to the problem in question.