Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
In a special appeal on whether or not a claim arising from a guarantee contract is subject to judicial reorganization[1], the Third Panel of the Superior Court of Justice (STJ) held that the guarantor’s claim against the recovering guarantor, as constituted after the request for judicial reorganization, is not subject to its effects.
The panel held that the guarantor’s claim is constituted with the fulfillment of the principal obligation owed by the guarantor, and that, prior to this, there is no legal duty of a patrimonial nature in favor of the guarantor. Thus, if the guarantor’s claim is constituted after the request for judicial reorganization, it must be considered as extraconcursal.
Reporting to Justice Nancy Andrighi, the decision was based on article 49 of the Judicial Reorganization and Bankruptcy Law, which prescribes that only claims arising prior to the filing of the petition are subject to the effects of judicial reorganization[2].
It should be noted that the issue has not been settled by the courts and the Marcos Martins Law Firm reaffirms its commitment to following up on decisions and legal updates in order to defend its clients strategically and effectively.
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[1] REsp 1860368/SP, Rel. Minister Nancy Andrighi, Third Panel, judged on 05/05/2020, DJe 11/05/2020.
[2] Art. 49, Law 11.101/05 – All claims existing on the date of the petition, even if not yet due, are subject to judicial reorganization.
