O inadimplemento da promessa de compra e venda de imóveis: uma releitura sob a perspectiva civil-constitucional

Abstract

The study of civil law in the light of the Federal Constitution entails re-reading the contract for the promise of buying and selling an immovable property, as well as its effects, according to the new values sanctified by the Constitutional axiological table. Re-reading them in such a functional way yields a new framework, conceptual and of content, in identifying a new normative discipline that is more suitable to nowadays system of civil law, with new perspectives accruing to its juridical nature, to the right of withdrawal and to the purchaser’s real right. Yet, the promise of buying and selling immovable property when interpreted according to the Federal Constitution discloses a particular aspect concerning a pathological moment in the juridical relation, not least in default. The system of the debtor’s moratorium can be therein observed to respond to promises by means of a particular logic; and so can the identification of its conversion into absolute default, the key factor in determining which lies in the realisation of the needlessness of the instalment to the lender. In the case of seller’s default, effects will vary from delay in the delivery of the immovable property, flawed fulfilment of the instalment in the property development, or in the case of the seller’s denial to fulfil the grant of the property’s definite deed. In the case of the purchaser’s default, besides the particular aspects concerning moratorium and the resolutive condition, the interpreter should avail himself or herself to criteria that aid the identification of a turning point at the functional synallagma of the contract; namely he or she should know whether the exercise by the lender of the right termination is legitimate or turns out to be abusive