By Leonardo Neri

The fiduciary alienation of family property as collateral for a loan with a financial institution may be considered a void legal transaction, as it violates an express provision of Law No. 8,009/90 – protection of family property.

Fiduciary alienation as collateral – regulated by Law No. 9,514/97 – is understood as the legal transaction by which the debtor, or fiduciary, with the scope of collateral, contracts the transfer to the creditor, or fiduciary, of the resolvable ownership of real estate. 

Therefore, the banking transaction may prove to be a violation of the express text of article 1 of Law No. 8,009/90, regarding the non-attachability of family assets.

Corroborating this understanding, the Civil Code itself invalidates a contractual clause worded in this way when it violates, through obscure maneuvers, an express text of the law. In this reasoning, the following are the words of article 166, VI, of the Civil Code: “A legal transaction is null and void when: (…) VI – its purpose is to defraud a mandatory law”.

Thus, it is clear that tolerating such conduct on the part of banks would be the same as not allowing the Judiciary to seize family property, but in a way that is contrary to financial institutions, which, aiming to obtain profit, would be authorized to create maneuvers through which a family property would guarantee a loan agreement, authorizing the execution of the real estate in the event of default by the underprivileged consumer.

It is worth noting that the Federal Constitution presents intrinsic principles in its text for the protection of the human person (article 1, III) and the family (article 226), so that it cannot be admitted that financial interests violate imperative law – the non-attachability of family assets (article 1, of Law No. 8,009/90).

It should be noted that the protection of family assets derives from a greater public interest, including social interest, from the perspective of the linear effectiveness of fundamental rights. This understanding is also corroborated by the Minister of the Superior Court of Justice, Marco Buzzi.

It is also noted that any interpretation of the non-attachability of family property must necessarily be substantiated by the fundamental right to housing – article 6 of the Federal Constitution – so that waiver or any type of judicial or extrajudicial transaction with such guarantee should not be permitted.

In fact, the Superior Court of Justice has already ruled that, as this is a matter of public order and social interest, the waiver of the legal protection granted to family assets is considered invalid.

The issue is even more controversial in contracts that denote the legal nature of an adhesion contract (article 54, Law No. 8,078/90), to the extent that their clauses are imposed by financial institutions unilaterally, not opening any room for negotiation in the dealings with consumers.

In this regard, it is worth noting that, according to the terms of articles 423 and 424 of the Civil Code, interpretation must be promoted in favor of the contracting party, and, therefore, clauses of early waiver by the party of rights resulting from the nature of the transaction are considered null and void.

Furthermore, when interpreting and applying the provisions of the Consumer Protection and Defense Code, the fiduciary alienation of real estate belonging to the family entity reveals an extremely unfair and abusive obligation, resulting in its nullity according to the uncertain wording in article 51, IV, of Law No. 8,078/90.

It is also noted that the contractual provision for the fiduciary alienation of the family property implies a restriction on a right that violates the entire system of the Consumer Protection Code.

And it is in this sense that consumer instruments must apply, notably the inalienability of jurisdiction (article 6, VII, of Law No. 8,078/90), in order to see the absolute nullity of clauses of this type declared.

It is also important to highlight that modern doctrine has supported the mitigation of pacta sunt servanda, given the social function of contracts (article 421 and article 2,035, sole paragraph, Civil Code), and good faith (article 422, of the Civil Code and article 4, III, and article 51, IV, of Law No. 8,078/90).

Therefore, the contractual provision should not prevail – such as the fiduciary alienation of family property, in the event that such legal transaction, tainted by merely financial interests, violates imperative law, the fundamental right to housing, human dignity, and, further, the entire system based on objective good faith.

It is therefore plausible to recognize the absolute nullity of the fiduciary alienation as security for the family property.