Fiduciary alienation is a widely used legal mechanism in financing contracts in Brazil, particularly to ensure the fulfillment of obligations in the real estate and vehicle sectors.
In a fiduciary alienation agreement, the debtor transfers the resolvable ownership of the financed asset to the creditor, retaining direct possession until the debt is fully paid. However, failure to make payments can result in severe measures by the creditor company, such as the consolidation of ownership and the subsequent sale of the asset.
This article examines the civil liability of the creditor company in fiduciary alienation, focusing on debtor default and the limits imposed by Brazilian legislation, including Law No. 9,514/1997 and the Consumer Defense Code (CDC). The analysis explores the company's obligations during the enforcement of the collateral and possible abuses that may lead to liability for moral and material damages.
1. Fiduciary Alienation as Collateral
Fiduciary alienation entered Brazilian law with Law No. 4.728/1965, regulating fiduciary alienation of movable assets. Later, Law No. 9.514/1997 expanded its application to real estate. This legal instrument aims to provide greater security to creditors in financing contracts by transferring the resolvable ownership of the financed asset to the creditor until the debtor fulfills their obligations. During this period, the debtor maintains direct possession of the asset with the right to use it.
In cases of default, the creditor may consolidate full ownership of the asset and proceed with the sale to cover the debt. However, this process must follow the strict steps set forth in legislation to balance the interests of both creditor and debtor.
2. Default and Its Consequences for the Debtor
When the debtor fails to meet their payment obligations, the creditor company may initiate the fiduciary alienation process, which follows these steps:
Debtor Notification: Article 26 of Law No. 9.514/1997 requires the creditor to notify the defaulting debtor, giving them 15 days to settle the debt. Notification may be made via a notary or mail, following legal parameters.
Consolidation of Ownership: If the debtor does not pay the debt within the stipulated period, the creditor may consolidate ownership of the asset in their name, as provided by law.
Sale of the Asset: After consolidation, the asset must be sold through a public auction, with the proceeds used to settle the debt and any excess funds returned to the debtor.
This fiduciary alienation process provides the creditor with expeditious guarantees but can also lead to legal implications for the company if there is any abuse of rights or disregard for the fundamental principles of good faith and transparency.
3. Civil Liability of the Company
The creditor company’s civil liability can arise at various stages of the fiduciary alienation process, especially when legal obligations are not met or when the debtor's rights are unduly harmed.
Inadequate Notification: Failing to properly notify the debtor of the default and debt enforcement may be considered a serious violation. The company can be held civilly liable if it does not fulfill the legal requirements to clearly inform the debtor within the established deadlines.
Excessive Collection Practices: If the creditor company engages in abusive collection practices, such as harassment or coercion, it may be liable for moral damages under the Consumer Defense Code. Debt collection must occur within legal and ethical standards.
Irregularities in the Auction of the Asset: If the asset is sold at significantly below-market prices or in conditions unfavorable to the debtor, the company may be accused of bad faith. Furthermore, the outstanding balance cannot be excessively increased with disproportionate interest and charges, or the company risks liability.
4. The Consumer Defense Code and Debtor Protection
The Consumer Defense Code (CDC) plays a fundamental role in protecting the debtor, who is considered the weaker party relative to the creditor company. In the context of fiduciary alienation, the CDC imposes limits on corporate behavior, prohibiting abusive practices and ensuring transparency and balance in contractual relations.
Key protections provided by the CDC include:
Adequate Information: The company must provide clear and accurate information to the debtor about the contract conditions, the consequences of default, and the collateral enforcement process.
Prohibition of Abusive Practices: Debt collection must be conducted ethically and respectfully, and any abusive practice that causes embarrassment or threatens the debtor is prohibited.
Violating these guarantees can result in the company’s liability for material and moral damages if the debtor proves harm caused by inappropriate conduct.
Conclusion
The civil liability of companies in fiduciary alienation is a highly relevant topic, especially given the consequences of default in financing contracts. While legislation provides creditors with effective mechanisms to ensure fulfillment of obligations, the enforcement process must respect the debtor's rights and adhere to the limits established by the Consumer Defense Code.
Irregularities such as lack of proper notification, abusive collection practices, or fraudulent auctions may result in the company’s civil liability, requiring it to act with transparency, good faith, and compliance with the law. Thus, maintaining a balance between creditors and debtors is essential to ensuring legal security and avoiding unnecessary litigation.
Â