A tutela jurídica do mínimo existencial e o direito à moradia do fiador nos contratos de locação.

Abstract

In view that the family property is a legal device created with the goal of protection regarding the minimum necessary property to maintain the dignity of human person, and that the assurance to have a home enables an individual and a familiar personal development, reveals itself to be inconsistent concerning the sustenance of the penalty forced to the guarantor figure, which presents himself as the warrantor in a contractual legal relationship which he intends to benefit from, where as the same obligation is not inflicted towards the immediate beneficiary from the legal relationship that was freely established, which remains entirely protected through its unseizability granted by the legal order. This study brings analysis of arguments from the Brazilian Supreme Court verdict RE 407.688, whose result was certifying the constitutionality of the guarantor’s family property, even before the inclusion of the right to housing in the Constitution, with the intention of assess the relativization legitimacy from the guarantor’s family property. By means of the research of the Brazilian institutes and legal order in force, associated to the constitutional commandments regarding the dignified conditions of individual existence and the protection of the familiar entity was verified, with an analysis of courts decisions which are reluctant to apply on the guarantor a constrictive measure, that the incentive to a free initiative and the maintenance of market logic do not legitimate restrictions towards the fundamental guarantor’s right to housing.