A (in)constitucionalidade da penhora do bem de família do fiador, prevista no artigo 3º, inciso VII, da Lei 8.009/90.

Abstract

The present monographic work aims to analyze whether the attachment of the tenant guarantor's family property violates the fundamental principles of the right to housing and human dignity and, therefore, aims to verify the constitutionality of article 3, item VII, of Law 8.009/90, to light of bibliographic research, with doctrinal and jurisprudential exploration. In this context, we intend to address the following question: Is the constitution of the guarantor's only property used as the residence of his family entity constitutional, given the tenant's default on the lease? To take care of this task, the deductive hypothetical approach method is used, by raising two hypotheses, which will be falsified in order to obtain an answer to the problem, the first of which is constitutionality of article 3, item VII, of the Law 8.009/90, and the second, unconstitutionality of the referred legal provision. The study of the matter is of fundamental importance, since the prohibition of constriction may lead to the requirement of more rigorous criteria to perfect the lease, which would risk making it unfeasible, given that the guarantee is the most usual and least onerous guarantee for the parts. On the other hand, the possibility of pledging the family property means benefiting the debtor more, in depreciation of the guarantor, and violation of constitutional precepts.