Social Right of Housing and the Unseizability of the Family Property in Commercial Location

dogmatic foundations of the Brazilian Supreme Court understanding and the impacts of the pandemic

Authors

DOI:

https://doi.org/10.14393/RFADIR-v49n2a2021-65178

Keywords:

Fundamental rights, Leases, Dogmatic foundation, Seizability of Family Property

Abstract

This paper discusses housing and its insertion in the Federal Constitution of 1988 as a fundamental social right. It mentions that item VII, of art. 3rd, law no. 8,009/1990 allows the attachment of the guarantor’s family good to pay the lessee’s debts in rental contracts, and deals with the guidance of the Supreme Court, which recognized the lawfulness of this practice in the general repercussion on extraordinary appeal no. 612,360/SP, related to the residential lease. Discusses the distinguishing carried out by the 1st Panel of the Supreme Court, in the trial of the extraordinary appeal no. 605,709/SP that recognized the garnishment inability of the guarantor’s family good in commercial lease agreement. The objective of the present work is to analyze the dogmatic foundation adopted by the 1st Panel of the Supreme Court in extraordinary appeal no. 605,709/SP. Through the deductive method, it was found that the 1st Panel of Supreme Federal Court, in the judgment of extraordinary appeal no. 605,709/SP used the interpretation according to the Constitution in the analysis of item VII of art. 3, of law nº 8,009/1990 – file in which it is verified the obligation to analyze the laws so that they meet the values established in the Constitution of the Republic, such as the dignity of the human person, family and the fundamental social right to housing. In the end, it analyzes the right to housing in the context of the coronavirus pandemic, which affected the Brazilian market in 2020.

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Author Biographies

José Roberto Della Tonia Trautwein, Centro Universitário Autônomo do Brasil (Unibrasil)

Doutorando e Mestre em Direitos Fundamentais e Democracia pelo Centro Universitário Autônomo do Brasil (Unibrasil). Graduado em Direito pela Faculdade Estadual de Direito do Norte Pioneiro. Advogado.

Laís Bergstein, Complexo de Ensino Renato Saraiva - CERS

Doutora em Direito pela Universidade Federal do Rio Grande do Sul. Coordenadora-Adjunta do Programa de Mestrado Profissional do CERS. Secretária-Adjunta da Comissão de Defesa do Consumidor do Conselho Federal da OAB. Advogada.

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Published

2022-05-12

How to Cite

Della Tonia Trautwein, J. R., & Bergstein, L. (2022). Social Right of Housing and the Unseizability of the Family Property in Commercial Location: dogmatic foundations of the Brazilian Supreme Court understanding and the impacts of the pandemic. Journal of the Faculty of Law of the Federal University of Uberlândia, 49(2), 330–350. https://doi.org/10.14393/RFADIR-v49n2a2021-65178

Issue

Vol. 49 No. 2 (2021): Revista da Faculdade de Direito da Universidade Federal de Uberlândia

Section

Articles

License

Copyright (c) 2021 Journal of the Faculty of Law of the Federal University of Uberlândia

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