Is there an unconstitutionality in Law 9,514 / 1997, of November 20, 1997, which provides for extrajudicial execution in loan agreements in the real estate market?

Abstract

The fiduciary alienation of immovable thing was introduced in Brazil by Law No. 9,514, of November 20, 1997, bringing several innovations in Brazilian law. Prior to the creation of law nº 9,514, as of November 20, 1997, almost 100% of real estate financing was made by the mortgage guarantee modality. Thus, Law 9.514/1997 brought important innovation by introducing the fiduciary alienation of immovable thing to the level of real law, as provided in Article 1,361 of the Civil Code/2002. The fiduciary disposal in guarantee establishes a resoluble property on behalf of the creditor being the debtor, in possession of the thing given in guarantee. Once the debtor's obligation has been settled, the property is consolidated on his behalf. On the other hand, if the obligation defaults, the law provides for mechanisms for the satisfaction of the defaulted credit. The fiduciary disposal is of great importance to the real estate market, since it establishes an out-of-court procedure to consolidate the property on behalf of the trustee in case of default. Fiduciary alienation is easy and quick to set up and execute, with safer, faster and more effective guarantee in the current legal system, becoming an important tool for dejudicialization and progress of the justice system. For the pregnancy and birth of studies and research of the research problem, the method of deductive approach was used, working with the technique of bibliographic reviews, and the understanding was drawn from theses debruçaded and constructed by years of knowledge of renowned Brazilian authors. Thus, the technique to be presented, understands that the law of fiduciary alienation is an important tool of dejudicialization, fast and effective in the legal system, and if operated in accordance with the law without generating harm to the parties that establish a legal business.