Alienação fiduciária de bens móveis infungíveis: análise da legislação à luz da doutrina e jurisprudência

Abstract

The objective of this work is the analysis of the fiduciary concept, related to unfungible movables, with brief historical digressions from the original concept of the rule since ancient Rome, but especially from the law 4.728/65, which implemented the fiduciary concept on our country, in the 1960s, as well as the transformations of legal nature, material and process, and hence of doctrinal and jurisprudential guidelines on the subject; considering these transformations influenced also by the new directions of ethics in the Law.

The work comes from the fiduciary concept and its characteristics, its subjective aspects, or who may participate to a contract with a fiduciary guarantee (fiduciary and fiduciant), their rights and obligations, third parties and objective aspects as well, such as unfungible movable concept. The aspects of the implementation of guarantees execution process caused by an eventual default of the fiduciant obligations are also addressed; there is a subsection reserved exclusively for the autonomous action of search and seizure and the issues inherent in the subject, as the procedures for effecting the seizure of the well, prohibition of covenants and the possibility (or not) of the fiduciant civil prison.

At the end of the work, the practical difficulties about the effectiveness of search and seizure action were treated, such as the civil prison of an unfaithful fiduciary, Law 11.101/05, which deals with judicial and extrajudicial recovery and bankruptcy of entrepreneurs and entrepreneurial companies.