Good Faith Third Party

1. Definition, Concept, and Legal Nature

A good faith third party is an individual who intervenes in a legal relationship or acquires an asset without having participated in the original relationship and, fundamentally, without knowledge of any defect, encumbrance, or irregularity affecting the object or the legitimacy of the preceding parties. The legal nature of the institute lies in the protection of trust and the appearance of right.

Doctrinally, the good faith required of the third party is subdivided into:

• Subjective Good Faith (Psychological): Refers to the subject's state of ignorance regarding the defect that taints the legal transaction. It is the internal belief that one is acting in accordance with the Law.
• Objective Good Faith (Ethics/Conduct): Imposes a standard of behavior. Lack of knowledge is not enough; it is required that the third party has adopted ordinary precautions and expected diligence (duty of care) to ensure the regularity of the situation.

2. Historical Origin and Evolution

The protection of the good faith third party dates back to Roman Law, through the exceptio doli, evolving into the protection of possession and property. In the Germanic system (BGB), the theory of appearance gained systemic contours to provide agility to commercial traffic. In Brazil, the 1916 Civil Code already contained glimpses of protection, but it was with the 2002 Civil Code (CC/02) that good faith was elevated to a general principle (Arts. 113, 187, and 422), consolidating the protection of the third party as an ethical and market imperative.

In Comparative Law, the principle finds an echo in Common Law through the figure of the Bona Fide Purchaser for Value Without Notice, demonstrating the convergence of legal traditions in preserving commercial security.

3. Legal Provisions and Relevant Statutes

The protection of the good faith third party is scattered throughout the legal system, with highlights including:

• Civil Code (Law 10.406/2002):
  • Art. 167, § 2º: Reserves the rights of good faith third parties against simulation.
  • Art. 475: Protects the third party in the event of contract resolution due to non-performance, safeguarding acquired rights.
  • Art. 1.268: Deals with the transfer of property by a non-owner, validating it if the acquirer is in good faith and the transferor subsequently acquires ownership.
• Civil Procedure Code (Law 13.105/2015):
  • Art. 792, § 4º: Establishes that, for the recognition of fraud against execution, the third-party acquirer must be summoned to file third-party objections.
  • Art. 844: Determines that the attachment of real estate must be recorded in the registry for an absolute presumption of knowledge by third parties.
• Law 13.097/2015 (Principle of Concentration in the Property Registry):
  • Arts. 54 to 56: Establish that legal acts not recorded in the property deed cannot be opposed to a good faith third party, reinforcing the effectiveness of public registration.

4. Practical Application and Jurisprudential Understanding

The jurisprudence of the Superior Courts has been the main vector for densifying this principle. The following consolidated understandings stand out:

4.1. Fraud Against Execution and STJ Súmula 375

The current understanding of the Superior Court of Justice, crystallized in Súmula 375, states: "The recognition of fraud against execution depends on the registration of the attachment of the alienated asset or proof of bad faith on the part of the third-party acquirer." This shifts the burden of proof in favor of the third party if there is no prior registration of the attachment, requiring the creditor to prove the consilium fraudis.

4.2. Mortgage Signed by a Construction Company (STJ Súmula 308)

A milestone in the protection of the consumer/third party: "The mortgage signed between the construction company and the financial agent, whether prior or subsequent to the execution of the promise of purchase and sale, is not effective against the acquirers of the property." Here, the good faith of the final acquirer prevails over the bank's real security interest.

4.3. Recent Evolution: STJ Repetitive Theme 290

The STJ reinforced that, for the characterization of fraud against execution as addressed in Art. 593, II, of the 1973 CPC (current Art. 792 of the 2015 CPC), a valid summons of the debtor or proof that the third party was aware of the lawsuit capable of reducing the debtor to insolvency is indispensable.

5. Related Principles and Doctrinal Divergences

The institute dialogues directly with the Principle of Ethicity and the Principle of Sociality. However, a debate arises regarding "Diligent Good Faith."

Modern doctrine, following recent STJ decisions (such as REsp 1.861.025), discusses whether protection for the third party should be absolute solely based on the absence of registration. The prevailing view is that good faith is ethical and active: the third party must perform searches for certificates of lawsuits filed in the domicile of the seller and the location of the property. The divergence lies in the intensity of this diligence: whether it is limited to the property registry (Law 13.097/15) or extended to civil and labor distribution certificates.

6. Contemporary Relevance and Practical Impacts

The protection of the good faith third party is what allows the real estate and capital markets to function. Without it, there would be a "probatio diabolica" in every transaction, requiring the verification of the entire past chain of ownership ad infinitum. The practical impact is the stabilization of acquisitions: once the third party meets the requirements of caution and there is no record of impediment, their ownership becomes full and unassailable by the transferor's debts, ensuring the circulation of wealth.

Legal and Jurisprudential References

• BRAZIL. Law No. 10.406, of January 10, 2002. Civil Code.
• BRAZIL. Law No. 13.105, of March 16, 2015. Civil Procedure Code.
• BRAZIL. Law No. 13.097, of January 19, 2015. (Principle of Concentration).
• SUPERIOR COURT OF JUSTICE. Súmula 375. Rel. Min. Fernando Gonçalves, judged on 03/18/2009.
• SUPERIOR COURT OF JUSTICE. Súmula 308. Rel. Min. Ari Pargendler, judged on 09/22/2004.
• SUPERIOR COURT OF JUSTICE. REsp 1.861.025/DF. Rel. Min. Nancy Andrighi, judged in 2021 (Minimum diligence of the buyer).