Aval

Abstract

In this article, the objective is to study the Aval and the requirement of spousal consent for its validity in credit instruments, based on the examination of its institutes and general aspects, imbued with the social purpose of protecting the spouse's share in relation to common assets, considering the limitation provided for in Law No. 10,406, of January 10, 2002. It proved important to analyze the normative treatment which, supported by the principle of specificity, will verify the application of the Aval institute regarding named and unnamed credit instruments, in view of the restriction of the civil law to apply its article 1.647 only to instruments governed by the Civil Code itself. Using a legal approach grounded in doctrines and methods, along with the interpretation of norms, review of bibliographic sources, and analysis of judicial decisions, the subject matter was delimited through the identification of positions favorable to the relativization of the norm in the current legal framework, in cases of judicial non-supply. Thus, it was found that the most recent interpretation by the courts is aimed at harmonizing the defense of the rights of the spouse not involved in the transaction with the need to ensure commercial transactions, as it no longer leads to the total annulment of the provided Aval, but only to the ineffectiveness of the guarantee with respect to the non-consenting spouse.