Functionality and limitations of the ordinary request for refund and its applicability to the contracts in debtor's bankruptcy

Alexandre Ferreira de Assumpção Alves

Keywords

Ordinary Refund; Bankruptcy; Property (Right of)

Abstract

Through classified as applied, qualitative, explanatory and bibliographical research, relevant issues involving ordinary request for refund of Brazilian Law number 11.101/2005 are analyzed. The right to property is recognized as a fundamental right under art. 5, XXII of the Constitution, allows the owner to use, usufruct and dispose of the thing, and especially the right to reclaim it from those who have acquired unjustifiably, according to art. 1228 of the Civil Code, as did the art. 524 of the Brazilian Civil Code of 1916. Thus, the ordinary request for refund is a corollary of the constitutional right of property that allow others parties to resume their property, which were unfairly collected in the debtor's bankruptcy. It was also noted that the right to repossess the property must be limited to the social function of contracts which requires contractors that they hanker, beyond their individual interests, the satisfaction of socially relevant interests. Thus, starting from a historical analysis of the institute, we study according to the inductive method, certain kinds of contracts in which descry the pertinence of the request for refund. Just like the conflict between the express termination clause, which functionalizes the request for refund, in contrast to the social function of contracts in the interests of the estate and other creditors.