Serviços bancários e a garantia dos valores depositados: uma análise da reserva fracionária dos depósitos à vista à luz do direito civil brasileiro

Abstract

In our times, the deposit is being increasingly used, given the advance of globalization in the world and the increasing interconnection of financial operations. However, a legal problem that has persisted over the centuries had not been resolved, what is the legal nature of the deposit contract, if effectively is a deposit or if it is a loan agreement and, then, to acknowledge the rules to be apply and consequences arising therefrom, among these, especially, the possibility of the use, by the banks, without ensuring the availability of the depositor, the amounts deposited, ie the legality of fractional reserve. These points being the gift of generator-motor research, which was developed through a methodology, unique, of bibliographic material and documentary analysis. So with the development of research, it is clear that the bank deposit, kind of the deposit group of fungible thing, is effectively a deposit by performing the main reason, called the objective cause, of the given the thing for custody, with the differentiating elements of the loan agreement the possibility of ad nutum refund, the need for maintenance of the availability of the amounts deposited in favor of the depositor and the possession of someone else's thing, once exercised the right to complain. Therefore, it is concluded that the fractional reserve is making harm for the custody duty in the deposit contracts.