THE (IN)FEASIBILITY OF SUBSTANTIAL PERFORMANCE AS A MEANS OF DEFENSE IN THE EXTRAJUDICIAL SEARCH AND SEIZURE OF A VEHICLE IN THE RTD

Abstract

The article studies whether the allegation of substantial performance is a possible means of defense, within the scope of the extrajudicial search and seizure procedure of the fiduciary sale in vehicles, at the Registry of Deeds and Documents (RTD), included in Decree-Law 911/2023, by the New Guarantees Law. To this end, it analyzes aspects of the constitutionality of the new procedure, in light of the judgments of the Federal Supreme Court regarding the extrajudicial foreclosure of the mortgage (RE 627.106) and the fiduciary sale of real estate (RE 860.631). Next, it is established that objective good faith is the meta-legal premise of substantial performance, studying its (in)compatibility with the allegation of substantial performance, in the enforcement procedure in the RTD. It presents doctrinal views of the theory of substantial performance, with evidence of its acceptance in the Brazilian legal system. Continuing, it summarizes the extrajudicial search and seizure procedure, according to the new legislation, making a parallel with the already consolidated jurisprudence, about similar procedures. It starts with the analysis of the results, whose comparison points to the inadmissibility of the allegation of substantial performance, both in court, and more in extrajudicial court, in view of the summary cognition of the registration officer, in the procedure of search and seizure of the fiduciary sale in vehicles.