Davi Gonçalves
Lawyer at Marcos Martins Advogados
The law has always allowed Fiduciary Leasing to convert the search and seizure request into an execution when the asset was not found, all for the simple reason that the financial institution had already paid off the asset.
On the other hand, considering that leasing is a lease with a monthly installment payment, which consists of the lease and partial amortization, it is considered that the lease has not been paid in full at the time it is signed, so the Courts have understood that it is impossible to convert the repossession action into an enforcement measure.
It is therefore necessary to pay attention to the recent decision by the STJ, which has come to the view that “in the case of repossession of vehicles relating to leasingoperations ” the same rule as Law 13.043/2014, which amended the Fiduciary Alienation Law, should be applied.
Under the terms of the Justice’s vote, then, it was reiterated that it is “fully applicable the provisions of article 4 of Decree-Law 911/1969, which provides for the conversion of the request into an enforcement action, by analogy, to leasing contracts”, in other words: the lessor may convert the action into enforcement when the movable property is not located.
Unlike Fiduciary Alienation, in which the financial institution “lends” the amount to the buyer for the acquisition of a certain asset, in Leasing you pay the institution a monthly installment and, in the end, you decide whether or not to acquire that asset.
The leasing system, also known as commercial leasing, is a very common instrument for promoting business activities in order to acquire the leased asset at the end of the contract, especially when it is a high-value asset.
Marcos Martins Advogados is attentive to new legislation and case law, in order to provide adequate and effective advice to our clients.
