Enforcement and Real and Credit Guarantees: How Far Can the Creditor Go?

Can real and credit guarantees be set aside or relativized in enforcement proceedings?As a rule, no. Properly constituted real and credit guarantees cannot be disregarded merely for enforcement convenience. Enforcement does not authorize the automatic relativization of valid guarantees, under penalty of violating legal certainty, credit predictability, and the very logic of the economic system.

The mitigation or removal of guarantees is an exceptional measure, conditioned upon concrete proof of fraud, simulation, or abuse.

What is the function of guarantees in the legal system?

Guarantees play a structural role in the system:

• they ensure trust in credit relationships;

• reduce systemic risk;

• enable long-term financing;

• protect economic predictability;

• stabilize the business and real estate markets.

Without respected guarantees, credit becomes more expensive—or disappears.

Which guarantees are legally protected in enforcement proceedings?

Among the main guarantees protected by the legal system are:

• mortgage;

• fiduciary transfer of real property;

• fiduciary assignment of receivables;

• pledge of rights;

• intragroup real and credit guarantees, when lawful.

Each has its own legal regime and is not indiscriminately subject to ordinary enforcement.

Does the debtor’s default authorize ignoring the guarantee?

No.

Default:

• is a prerequisite for enforcement, not a justification for abuse;

• does not eliminate the statutory order of priority;

• does not allow the creditor to freely choose the most convenient asset.

Enforcement is not a license to disrupt valid guarantees.

Can a creditor compete with an already constituted guarantee?

No.

The creditor:

• must respect the priority of the real guarantee;

• cannot attach assets encumbered by fiduciary transfer;

• cannot subvert the statutory order of preference.

Any attempt at improper competition violates the guarantee system.

Are guarantees granted to third parties or within a corporate group suspicious?

Not in themselves.

Guarantees:

• granted to third parties;

• provided within an economic group;

• linked to legitimate financial transactions,

are not unlawful and do not presume fraud. What is required is real economic purpose and formal regularity.

When may a guarantee be judicially challenged?

Only when the following are robustly proven:

• fraud against creditors;

• simulation of the guaranteed transaction;

• lack of economic cause;

• effective and deliberate harm to a prior creditor;

• insolvency caused by the granting of the guarantee.

Absent these elements, the guarantee remains valid and enforceable.

Does frustration of enforcement authorize relativizing guarantees?

No.

Frustration:

• does not replace proof of fraud;

• does not legitimize generic presumptions;

• does not transform a valid guarantee into an unlawful act.

A frustrated enforcement is not a shortcut to bypass the legal regime of guarantees.

Is it possible to attach receivables already fiduciarily assigned?

No.

Fiduciary assignment:

• transfers resolvable title to the fiduciary creditor;

• removes free disposition of the credit;

• prevents attachments by third parties outside the relationship.

Direct attachment violates the legal nature of the guarantee.

Is a specific procedure required to set aside a guarantee?

Yes.

Any attempt to remove or relativize a guarantee requires:

• a proper action or appropriate incident;

• due process and full defense;

• specific evidence of unlawfulness;

• a reasoned judicial decision.

Automatic relativization is legally null.

What is the role of the Judiciary in enforcement involving guarantees?

The Judiciary must:

• preserve valid guarantees;

• curb predatory enforcement practices;

• require concrete proof of abuse;

• protect the stability of the credit system;

• avoid casuistic decisions that generate legal uncertainty.

The judge’s role is not to facilitate enforcement, but to apply the law with technical rigor and balance.

Conclusion

Under the Brazilian legal regime:

• real and credit guarantees must be respected;

• enforcement does not authorize their automatic relativization;

• fraud and simulation are not presumed;

• the burden of proof lies with the party alleging abuse;

• legal certainty in credit is a structural value.

In Business Law, enforcing claims without respecting guarantees does not strengthen credit—it destroys the system.

Technical Summary

✔️ Guarantees structure the credit system

✔️ Default does not authorize abuse

✔️ Frustrated enforcement does not set aside guarantees

✔️ Relativization requires concrete proof

✔️ Asset separation and statutory priority must be preserved

Ferreira Advocacia operates with technical rigor in complex enforcement proceedings, real and credit guarantees, receivables, asset reorganizations, and strategic credit defense, providing precise, secure legal analysis aligned with best practices in Business Law.