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Fiduciary Alienation and Mortgage: Differences, Effects and Jurisprudential and STJ Considerations.

Updated: Aug 8, 2023


This scientific article aims to analyze the differences between fiduciary alienation and mortgage, highlighting their effects and developments according to jurisprudence and the position of the Superior Court of Justice (STJ). The concepts of each institute, its legal effects, practical aspects and the most recent decisions of the courts on the subject will be addressed.


In the field of real estate law, fiduciary alienation and mortgage are institutes widely used to guarantee the payment of debts related to real estate. Although they have similar purposes, these two institutes have significant differences in relation to their effects and consequences. In this article, we will discuss the distinctions between fiduciary alienation and mortgage, based on jurisprudence and the position of the STJ, in order to provide an in-depth understanding of these topics.


1. Fiduciary Sale:

Fiduciary alienation is an institute provided for in Law nº 9.514/97, which allows the debtor to transfer ownership of an asset to the creditor as a guarantee for a debt. In this case, the creditor becomes the fiduciary, and the debtor the fiduciary. The main characteristic of fiduciary alienation is the fact that, while the debt is not settled, the trustee has direct possession of the asset, and the debtor has only indirect possession. In case of default, the fiduciary may auction the alienated asset to settle the debt.


2. Mortgage:

The mortgage, in turn, is an institute regulated by the Civil Code, in which the debtor (mortgant) grants the creditor (mortgage holder) a real right of guarantee over an immovable property for the payment of a debt. In this case, unlike fiduciary alienation, the debtor maintains direct possession of the asset and can enjoy it normally. In the event of default, the creditor may request the foreclosure of the mortgage in court to obtain satisfaction of the credit, and may take the property to public auction.


3. Legal Effects:

The main difference between fiduciary alienation and mortgage lies in the form of guarantee and the effects in case of default. The fiduciary alienation gives the creditor a property right over the good, while in the mortgage the creditor only has a preemptive right over the property. In addition, in fiduciary alienation, the transfer of ownership is automatic, while in mortgages formalization is required through a contract and subsequent registration at the Real Estate Registry Office.


4. Jurisprudence and Positioning of the STJ:

With regard to jurisprudence and the position of the STJ, it is important to note that this is a subject in constant evolution. The STJ has already issued relevant decisions on fiduciary alienation and mortgages, establishing understandings that have influence in future cases. It is common for there to be debates about the limits and possible abuses of each institute, as well as respect for the debtor's rights.


Conclusion:


In short, fiduciary alienation and mortgage are legal institutes used to guarantee the payment of debts related to real estate, but they have differences in relation to their effects and legal consequences. The jurisprudence and the positioning of the STJ play a fundamental role in the interpretation and resolution of conflicts related to these institutes. Thus, it is essential that legal professionals, as well as parties involved in real estate contracts, are up to date on these decisions to ensure proper and fair application of legal rules.

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