Uniube+ Direito das Coisas: Semana 15.3

Summary

In this lesson, the speaker discusses the various ways in which a mortgage can be extinguished according to Brazilian Civil Code 1499. Key methods include the extinction of the principal obligation, destruction of the mortgaged property, and various legal mechanisms like the renunciation by the creditor, judicial auction, and usucapion. Additionally, the lesson touches upon the potential fraud against creditors and the unique cases of mortgage annulment. The speaker emphasizes that while these are the common scenarios, other exceptions and nuances exist, offering a comprehensive understanding of mortgage termination.

Takeaways

• 😀 Hipoteca extinction is primarily outlined in article 1499 of the Civil Code, but additional scenarios exist beyond those mentioned.
• 😀 The first form of extinction is when the primary obligation (the debt) is extinguished, which in turn leads to the extinction of the associated hypothec (mortgage).
• 😀 The principle that 'accessory follows the fate of the principal' applies, meaning if the main obligation is extinguished, the mortgage is also extinguished.
• 😀 If the principal obligation is partially extinguished, the mortgage remains intact and does not reduce in proportion to the extinguished part.
• 😀 A hypothec is extinguished if the object of the mortgage, typically an immovable property, is completely destroyed. Partial damage does not affect the hypothec.
• 😀 A property subject to a term or resolutory condition can have its mortgage extinguished once the term or condition occurs, signaling the end of the property's ownership by the debtor.
• 😀 A creditor may renounce a hypothec, but this renunciation must be express, meaning it cannot be assumed. This renunciation is formalized through a public deed.
• 😀 Renunciation of a hypothec does not apply to legal mortgages, which are often related to public interests and cannot be easily undone by individual decisions.
• 😀 Remission allows a debtor to pay off the mortgage and retrieve the property, but this process requires careful attention to the details outlined in articles 1481 and following of the Civil Code.
• 😀 If a property is sold at auction or adjudicated, the mortgage is extinguished because the creditor has either received or will receive the payment through the sale.
• 😀 There are additional methods of hypothec extinction not explicitly mentioned in article 1499, including when the creditor purchases the mortgaged property or when the hypothec is annulled due to fraud.

Q & A

What is the primary basis for the extinction of a mortgage?

The primary basis for the extinction of a mortgage is the extinction of the principal obligation, as the mortgage is an accessory obligation linked to the primary one.

What is the legal reference for the forms of extinction of a mortgage in Brazil?

The forms of mortgage extinction are primarily outlined in Article 1499 of the Brazilian Civil Code.

How does the principle 'accessory follows the principal' apply to mortgages?

The principle means that if the principal obligation is extinguished, the accessory obligation (the mortgage) will also be extinguished. However, if the principal is partially extinguished, the mortgage remains intact.

What happens to a mortgage if the object (property) is destroyed?

If the property object of the mortgage is completely destroyed, the mortgage is also extinguished, as it is no longer possible to secure the debt with an inexistent object.

Can a mortgage be extinguished by the destruction of the property or by its depreciation?

The mortgage is extinguished only if the property is completely destroyed. Depreciation or deterioration does not lead to the extinction of the mortgage.

What is the difference between a 'term' and a 'condition' in the context of a mortgage?

A 'term' is a certain future event (e.g., a specific date) that marks the end of the mortgage's effect, while a 'condition' is an uncertain event that may or may not occur, which could lead to the mortgage being extinguished.

What is the risk involved when a mortgage is subject to a term or condition?

The risk lies with the creditor, as they must accept the possibility that the ownership of the property may change, or the mortgage may be extinguished depending on the fulfillment of the term or condition.

What does 'renunciation of the mortgage' mean, and how does it affect the mortgage?

Renunciation of the mortgage means that the creditor voluntarily gives up their right to the mortgage as a guarantee, though they still retain the right to receive the debt. This renunciation must be explicit and is usually done through a public deed.

Are there any exceptions to the renunciation of the mortgage?

Yes, renunciation does not apply to legal mortgages, as these are matters of public order, and the state has an interest in maintaining them for the protection of creditors, such as in cases involving family estates.

What are other methods of extinguishing a mortgage beyond the ones outlined in Article 1499?

Other methods of extinguishing a mortgage include the creditor purchasing the mortgaged property, consolidation of ownership by the creditor, annulment of the mortgage due to fraud, and usucapion (adverse possession) where the property is taken by another individual.