A exoneração da fiança nas locações imobiliárias após o advento da Lei 12.112/2009 e a polêmica sobre a aplicabilidade da súmula 214 do STJ

Abstract

This study is focused on the analysis of the juncture systematic current that involving the bail (rental guarantee), in the mold of the Law 8.245 of October 18, 1991, with the new changes introduced by Law 12.112 of December 9, 2009. The main focus of the study is the possibility of exoneration of the bail, either by recent changes of the Rental Law, either by matters of modification the contractual conditions to which the guarantor subjected himself in the contractual instrument, which, strictly speaking, would allow him the release of the warranty signed. However, controversial issues were analyzed with caution, as in cases of exoneration of the bail done by simple notification (article 40, X, Law 8.245/1991, as amended under Law 12.112/2009) and in the cases of addition or modification of the contract to which the guarantor consented not, touching, consequently, in conflicting currents about the Understanding 214 issued by the Superior Court of Justice. The interest in the subject arises from the principle that all those who act in the forum in actions involving rental contract, notedly “eviction for non-payment” or “execution of rental charges”, confirm that most contracts contain clause that the guarantors liability by debt of the tenant remains until it return the keys to the leased property at the hands of the lessor. This clause, in fact, is the literal transposition for the contract of the rule in article 39 of the Rental Law, on the understanding that “unless otherwise provided by contract, any of the guarantees of the lease extends to the effective return of the property”. Finally, the analysis is based on the debate whether the practice of linking the guarantor to lease contract would be to extrapolate the limits of the social contract and what is the current position of the doctrinal and jurisprudential issue, which is expected have been satisfactorily clarified along the lines outlined here.