Alienação fiduciária em garantia de bens imóveis: da problemática de insubsistência do segundo leilão extrajudicial, possíveis soluções e a figura do pacto marciano

Abstract

In this work, a brief evolutionary overview of the institution of fiduciary alienation in guarantee will be detailed, going back to its roman genesis to its current delimitation in the brazilian legal system. The extrajudicial excusive rite delimited in Law n. 9.514 of 1994 will be delimited as well as the hypothesis of non-subsistence of the second auction and consequent adjudication of the thing in favor of the creditor. The possible solutions proposed by the appropriate literature will be contrasted, namely the theory of substantial performance and application of the brazillian Consumer Protection Code, and they will be duly problematized. Finally, we will go back to the prohibition on the commissary pact established by the order, contrasting it with the figure of the Martian Pact, delimiting it, as well as its operational advantages.