Revista Brasileira de Direito Empresarial (Dec 2015)
Credit Titles: a Relationship Between Legal Certainty and Justice in the Theories of Creation and Issuance
Abstract
Securities play a key role in the market once they allow the credit circulate quickly and safely. It could be said that securitues have been the greatest contribution of business law for the formation of the modern economy. However, precisely because they permit a quick ad safe credit circulation, there may be some questions about the subject. When we analyze the theories about creation and issuance of the securities, it appears that under Brazilian law it is possible that a person who had a debt claim stolen be required to pay for it, for example. And in this context, a conflict may arise between legal certainty and certainty itself on one hand, and equity and justice on the other. The first ones answer the need of citizens to have organic structure and system drive so that the right to reduce the social reality in simple and formal schemes. The latter ones, in turn, respond to the need to seek the maximum possible match between the law and reality, so that the law is not immutable and insensitive. However, it is not always possible to reconcile them fully, requiring a balance between them in fact situation. Thus, important to examine this relationship in the context of theories of creation and issue, especially when a title circulates without the will of the applicant and he has to fulfill the obligation. Relevant to this analysis, because they are both legal certainty and certainty as justice and equity requirements of law. If there is no balance, we run the risk of harming the market and therefore the entire economy of a country or that there are decisions that generate a sense of injustice, being harmful to the credibility of the judiciary. At the end of the work, then, it is expected to justify the need for this balance, particularly the importance of debt securities and the consequences that generate in society. As a research method, the exploration was used, so that the object has been studied by collecting and doctrine study, scientific articles and dissertations that portray the theme.
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