O controle dos atos de disposição do bem de família involuntário em perspectiva funcional

Abstract

The present dissertation aims at examining the effects that acts of disposal of involuntary homestead produce to the assurance of unseizability provided by Law nº 8,009/90. In Brazilian Law, homestead serves the purpose of assuring the minimum estate of a debtor as an instrument for protection of the constitutional and human right to housing afforded to the debtor himself and to his family members. However, unlike the consensual homestead system provided for in the Brazilian Civil Code, the lawmaker did not impose restrictions to the exercise of the prerogative to dispose of an involuntary homestead by its owner. In this context, the debtor s trading autonomy often conflicts with the practical-social purpose of the institute, particularly in the events of pledging as security, designation for attachment and disposal (either free or onerous) of the homestead. Therefore, the need to preserve coherence of the legal system emerges, by identifying in each case, the reach of the legal guarantee vis-à-vis acts of disposal of homestead performed by a debtor. Control of any such acts shall be exercised by the interpreter, in each concrete case, from the functional analysis of the institute, as a logical consequence of the supremacy of the constitutional provision. In view of the axiological-normative basis of the exemption from liability from debts, which presupposes primacy of existential values in the table of values of the Brazilian Constitution, some parameters will be suggested for harmonization of conflicting interests.