Contrato de fiança / Contrato de fiança

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

This study analyzes the surety agreement under Brazilian civil law. In chapter one, we examine the position the suretyship agreement occupies in the field of civil law. To do so, we systematize forms of credit protection and, more specifically, different reinforced and special suretyship forms. In chapter two, we define a suretyship agreement with the assistance of subsidies from etymology, Brazilian law and comparative law. In chapter three, we provide a short history of suretyship. We look at its contours in Roman law and its development in Brazil, to finally determine that, in most of bodies of law, the surety bond is the paradigmatic personal guarantee. In chapter four, we focus on the role played by the surety bond from juridical, economic and social viewpoints. This chapter also features the advantages and disadvantages of a surety bond, as well as its scope of application and economic effects stemming from its reinforcement. In chapter five, we explain the general foundations of the legal regime governing the suretyship, and then proceed to examine its specific foundations accessoriness, purpose of guarantee and its characteristics as a risk business. In chapter six, we study the surety bond as a complex triangular structured transaction. At the same time, we comment on the dynamics of a suretyship transaction, delimiting the content and breaking down of its different phases. In chapter seven, we name the main characteristics of a suretyship agreement contractuality, accessoriness, solemnity, consensuality, intuitu personæ, and its natural gratuitous, unilateral and subsidiary traits. In chapter eight, we present several types of surety bonds legal, conventional and voluntary, highlighting suretyship upon first demand. We also mention criminal bail bond, which actually is not a fidejussory guarantee. We then compare suretyship with similar types of guarantees, for which purpose we selected the accommodation endorsement, del credere, joint liability, assumption of debt, adhesion to debt, real third-party commitment, the agreement in favor of a third party, credit mandate, credit insurance, guarantee insurance, comfort letter and autonomous guarantee. In chapter nine, we investigate the forms in which surety bonds are found in each of the legal transaction plans existence, validity and efficacy. In chapter ten, we examine the parties to the surety agreement. Here we analyze issues related to the creditor and surety, both parties to the agreement. Likewise, we consider the situation of the obligee in relation to the surety agreement. In chapter eleven, we center our attention on the content of the suretyship. After outlining this, we list the obligations for which such guarantee is available, followed by special cases involving future, natural and nonfungible obligations as well as omnibus bonds. In chapter twelve, we address problems related to the extension of the suretyship agreement, as well as the change of the extension of the surety agreement. In chapter thirteen, we provide a restrictive construction of the surety agreement, emphasizing its basis and reach. In chapter fourteen, we examine the effects of the suretyship agreement fidejussory relation, benefit of order, benefit of division, benefit of subrogation and standard legal forms for the suretys equity adjustment; as well as the controversial attachment of the residential property of a surety of urban property lease agreement. In chapter fifteen, the introduction points out possible pleas a surety may enter against a creditor. Then, we speak about the extinguishment of the suretyship agreement for causes common to most obligations and for causes that arise out of the fidejussory regime. Lastly, we provide a summary of the main conclusions arrived at during the works

ASSUNTO(S)

aval e fianca -- brasil contrato de fiança surety agreement direito civil -- brasil direito

ACESSO AO ARTIGO

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