Bankruptcy decision envisages Estado Brasileiro da Fraternidade – 06/29/2023 – Frederico Vasconcelos

Judge Clarissa Somesom Tauk, of the Court of Justice of São Paulo, suspended the auction of a property inhabited for 32 years by a family in poverty, by issuing a decision based on humanist capitalism.

Judge of the 3rd Bankruptcy and Judicial Recovery Court of the Central Civil Court of the Capital, Tauk determined the definitive cancellation of the unavailability of the property. She confirmed emergency relief previously granted by the court itself. The decision can be appealed.

The tenement would be put up for auction at the request of the trustee of the bankrupt estate owner who neglected his function. The magistrate understood that he ignored, for decades, the “only shelter of a family of eight people, including the elderly and a PCD child, who could be displaced”. She recorded that the family paid for the good.

Tauk judged the performance of the liquidator “clearly irresponsible with regard to the creditors’ competition and with the Brazilian Justice”.

The judge also stressed that the family is in an extremely vulnerable situation, including the elderly and children with disabilities, and based her vote on a humanist perspective. “It is not a mere analysis of the documentary controversy about property ownership, but a deeper consideration of property and its social function in Brazil is required, in accordance with the modern Federal constitution”, she recorded.

She considered the impact of the collection of real estate for bankruptcy to be quite small. The expert set its value at BRL 219,000, of which BRL 71,000 comes from the construction carried out by the plaintiffs. The updated balance of the bankruptcy is R$ 1.284 million.

humanist capitalism

Tauk analyzed the case in light of the social function of property. She cites a work that she co-authored with Justice Paulo Dias de Moura Ribeiro, of the Superior Court of Justice, to expose the vision that, in her opinion, should permeate the work of the Judiciary: humanist capitalism proposes “a new confrontation of capitalism , as an economic regime, in order to ensure the realization of Human Rights, relativizing the right to property and free enterprise”.

“We do not want to subvert the order implemented by the insolvency system, but adapt it to fraternal parameters that protect the less favoured, who end up being the most vulnerable”, he said in the decision.

Tauk cites lawyer Ricardo Hasson Sayeg, defender of humanist capitalism. He is aligned with thinkers who see in the Constitution the consecration of fraternity as a legal principle-value-category. “Thus, it is possible to find the so-called Brazilian State of Fraternity, whose task is to guarantee everyone a vital minimum, based on a multidimensional perspective of human rights of the first, second and third dimensions”, he records.

Ricardo Sayeg and Wagner Balera are authors of works on the Brazilian Insolvency System and the humanist philosophy of economic law.

Social function of property

In the decision, Tauk makes reference to lawyers Gustavo Tepedino and Anderson Schreiber to state that, in the Brazilian constitutional text, there is only guarantee to property that fulfills its social function.

He mentions retired STF minister Eros Grau, for whom property that does not fulfill its social function ceases to be property.

He cites the jurist Fábio Konder Comparato, who considered it nonsensical to extend the qualification of property as a fundamental right to the domain of an unproductive estate, or an unused or underutilized urban plot of land, in cities with serious problems of popular housing.

The trustee argued in the case file that there was no procedural legitimacy, because, despite the appellant’s claim that he bought the property from third parties, the documentation presented proves nothing about the alleged right.

Tauk determined the reduction of union fees, “given the bad performance in relation to the bankrupt’s real estate.” He condemned the mass to pay succumbential fees in the amount of 10% of the value of the cause.

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