Post by account_disabled on Mar 13, 2024 20:36:17 GMT -8
The lessee who leaves movable assets to honor obligations set out in the lease contract does not eliminate the guarantor's obligation. For the 4th Panel of the Superior Court of Justice, even if the landlord does not return the furniture, using and deteriorating it, and if it has sufficient value to cover the debt, this does not release the guarantor from his guarantee.
In the case analyzed by the class, two B2B Lead guarantors executed due to a debt contained in an extrajudicial executive title based on a commercial lease contract filed an embargo on execution claiming that they were not responsible for several late water, electricity and condominium bills. They also alleged that the value of the debt was not liquid and certain and that there was excessive attachment.
In the first instance, the allegations of passive illegitimacy, the preliminary suspension due to external prejudice due to a possessory action and the allegation of excessive attachment were rejected. The São Paulo Court of Justice confirmed the judge’s understanding.
Before the STJ, the guarantors stated that the ruling was silent and that there was an error in the ruling regarding the need to suspend the execution. They further stated that any claim in which the creditor could be subrogated should also be preserved in favor of the guarantor, and movable assets left as payment by the lessee could be subrogated by both the creditor and the guarantors.
The rapporteur, Minister Luis Felipe Salomão, explained that the Code of Civil Procedure recommends that the filing of any action relating to a debt contained in an executive title does not inhibit the creditor from promoting execution. The minister highlighted that this is also the understanding of the STJ.
Thus, according to Salomão, “the credit provided for in the executive title must be considered valid, even if a judicial decision is pending regarding it, given that the reckless scope of an eventual cognitive action may only have the purpose of obstructing the satisfactory process , demoralizing the enforceability of the executive title”.
He highlighted that, in the case analyzed, there was a rent enforcement action filed by the defendant, enforcement motions filed by the guarantors and an action to repossess the movable assets (left in the property) filed by the tenant against the landlord.
When dismissing the special appeal, the rapporteur explained that the guarantee is the contract by which the guarantor guarantees, before the creditor, an obligation assumed by the debtor in the event of non-compliance, making all of his assets available in support of the debt.
In the case under analysis, both the sentence and the appealed ruling ruled out the possibility of exempting the guarantor, on the grounds that the existence of the furniture in the possession of the property lessor did not grant him any privilege or guarantee in relation to the debtor that could be transferred. to guarantors.
According to Salomão, the movable assets given in payment “were not even part of the contract at the time the guarantee was established”, which did not imply “worsening the situation of the guarantor because they were never used to grant the guarantee”.
“I think that, in this case, there is no need to say that the fact that the creditor made it impossible for the guarantors, now appellants, to subrogate their rights and preferences, simply because the defendant did not assume any right or preference in the goods offered by the lessee that could become subrogated by the appellants. On the contrary, if the creditor had accepted an object other than what constituted the obligation, then, yes, he could have seen his personal guarantee, in some way, removed”, he pointed out. With information from the STJ Press Office.