The Risks of Bail in Brazil: The Figure of the Guarantor from the Perspective of the Brazilian Supreme Court in Cases Involving Family Property
The purpose of this article is to examine the legal and jurisprudential treatment of guarantors of rental contracts of a residential and commercial nature. The examination of the legal effects arising from the decision to act as guarantor is also sought. To this end, it is mentioned that there is, within the framework of normative infrakonstitutional, express command of safeguarding the family good, institute whose bias is the preservation of the fundamental right to housing, human and social right, positivized in article 6 of the Constitution of the Federal Republic of Brazil. This legal backing derives from the intrinsic relationship between adequate housing and the right to life and the dignity of the human person. On the other hand, it has to be said that the legislation itself which makes the debtor’s property unbinding, excludes the guarantor. And, since the bail is a personal guarantee, as a rule, provided free of charge, there is a profound divergence of understanding among the members of the highest court in Brazil about the constitutionality of the seizure of family property of the tenant of the lease contract. For this reason, it turns out to be relevant the study of four important judges (Extraordinary Recourses 407.688, 612.360, 605.709 and 1.307.334) that demonstrate, over the years, the position of the Supreme Court on the subject.
