FIDUCIARY ALIENATION AND OBLIGATIONS PROPTER REM: THE BALANCE BETWEEN LEGAL CERTAINTY AND THE SOCIAL FUNCTION OF PROPERTY

Abstract

In recent decades, the expansion of credit and the increasing use of fiduciary alienation as collateral have generated important debates about the limits of the responsibility of the involved agents. This article aims to analyze the propter rem obligations incident to fiduciary property, especially in contexts of environmental and urban damages or charges, evaluating the possibility of holding the fiduciary creditor accountable. The research adopts a qualitative approach, with an exploratory and descriptive character, based on bibliographic and documentary review. The methodological path included the analysis of legal doctrine, legal provisions, and recent jurisprudence, with emphasis on decisions and repetitive themes of the Superior Court of Justice. It was found that, although there is a tendency to restrict the responsibility of the fiduciary creditor to cases where they consolidate the property, in environmental matters the logic of the socio-environmental function of the property prevails, justifying, in certain cases, their accountability even without direct possession of the asset.