Post by account_disabled on Mar 13, 2024 3:58:18 GMT -5
The fiduciary sale as a guarantee of real estate, established by Law 9,514/97, was an important instrument for stimulating real estate credit and, consequently, the revival of this market, especially after the enactment of Law 10,931/2004.
However, despite the law in question B2B Lead being in force for almost 13 years, several discussions still permeate the topic, one of the main ones being the way in which it is implemented. This is because Law 9,514/97 allows the constitution of such a guarantee to be made by private instrument, as an exception to the rule of public deed provided for in article 108 of the Civil Code, under the terms of article 38 transcribed below:
Art. 38. The acts and contracts referred to in this Law or resulting from its application, even those aimed at the constitution, transfer, modification or renunciation of real rights over real estate, may be concluded by public deed or by private instrument with the effects of public deed .
In fact, despite the national scope of federal legislation, the internal affairs bodies of some states have understood that the rule of using a private instrument to formalize fiduciary alienation as collateral and related businesses (as in the case of purchase and sale) only applies to institutions of the Real Estate Financial System (SFI), although the law has not made any restrictions in this regard.
In this sense, it is what governs the Code of Rules of the Courts of Justice of Minas Gerais, Pará, Bahia and Paraíba.
Although its use outside the financial market has only gained ground in recent years, it is an instrument available for all types of operations, including by individuals, “ not being exclusive to entities operating in the SFI ”, as expressly regulated the first paragraph of article 22 of the law in question, an understanding that is corroborated by article 51 of Law 10,931/2004.
It should be noted that, despite the SFI being also regulated by Law 9,514/97, just like fiduciary alienation as a guarantee of real estate, such institutions are treated in different chapters, with no reason to create any relationship of dependence regarding the rules of one or the other. In fact, if the legislator wanted to create some type of limitation on the use of the particular instrument, he would have included an expression in this sense at the end of the text of article 38, to differentiate the hypotheses that should be used, which he did not do.
Regarding the absence of restrictions or conditions for the use of the private instrument, it is worth transcribing what the jurist and author of the draft of the Law that gave rise to the fiduciary alienation in guarantee (9,514/97), Melhim Namem Chalub, says.