Adimplemento substancial nos contratos de alienação fiduciária: uma crítica ao entendimento do Superior Tribunal de Justiça à luz dos princípios contratuais da boa-fé objetiva, da função social dos contratos e da menor onerosidade

Abstract

Chattel mortgage contracts, especially with regard to movable assets (vehicles), are quite

common in Brazil, due to the ease and convenience that the buyer has in acquiring the much- dreamed-of automobile, without initially paying the total value of that asset, since the institution

that will pay for such a vehicle, at least at the beginning, is the financing banking institution. In this sense, after the car has been paid in full by the bank, the bank will apply interest to the financing installments, which means that the financial institution earns on this financing. However, what happens is that, commonly, the bank's debtors are unable to pay their debts, which ends up causing the bank to propose a search and seizure of the vehicle, due to default, even if there is only one installment in arrears. In this context, we will deal in this article with respect to the applicability, or not, of the theory of substantial performance, based on legal provisions, jurisprudence and doctrines, where, initially, we will make some initial considerations about banking law in the world and in Brazil; later, we will address contractual principles; we will talk a little about the adhesion contract and fiduciary alienation and, also, the theory of substantial performance, finally, we will analyze the understanding of the Superior Court of Justice when judging some special appeals that addressed the topic, especially the most recent one, which is Resp n. 1,622,555 - MG. The approach methodology adopted is of the

bibliographic-jurisprudential type and the research methodology is of the hypothetical- deductive type. From this study, we had as a result the great need to review the way in which

debts relating to this type of contract are being charged, concluding that it is extremely disproportionate to constitutional principles to seize movable assets from a minimal default and the context eventually proven, in the specific case.