Aline Cavalcante de Souza Sanches
Lawyer at Marcos Martins Advogados
In a recent thesis approved by the Superior Court of Justice, on December 9, 2020, in a Special Repetitive Appeal, in the judgment of REsp nº 1842911/RS, it is considered for the purposes of verifying the analysis of the subject of a credit recognized in a lawsuit to judicial reorganization, the date of its generating event, not by the final and unappealable judgment that recognizes it.
The rapporteur, Justice Ricardo Villas Bôas Cueva, decided to rule on the following controversy:
“to define the moment at which a claim arising from an event that occurred before the request for judicial reorganization should be considered to exist for the purpose of being subject to its effects, the date of the triggering event or the final and unappealable judgment recognizing it”.
In the case in point, there was a discussion about the subjection of a certain indemnity claim to the effects of the debtor’s judicial reorganization, considering that the final and unappealable judgment recognizing the duty to pay occurred after the reorganization petition.
On the other hand, the harmful event, i.e. the triggering event of the judgment that ordered the payment of compensation, occurred prior to the petition for judicial reorganization.
The crux of the debate is whether to consider, for the purposes of verifying that the company is subject to the reorganization process, the date on which the judicial enforcement order (judgment) was issued, i.e. the final and unappealable decision, or the day on which the triggering event occurred.
The relevance of this decision on the date to be considered stems from article 49 of Law 11.101/2005, which states: “All claims existing on the date of the petition, even if not yet due, are subject to judicial reorganization”.
Given the legislator ‘s choice to exclude from the procedure claims arising after the reorganization process, it was up to the Supreme Court to define what should be considered as a claim existing on the date of the request, even if not overdue, for the purposes of verifying that it is subject to the effects of judicial reorganization.
In addressing the issue, the Superior Court of Justice established the thesis outlined below:
“For the purposes of submission to the effects of judicial reorganization, the existence of the credit isconsidered to be determined by the date on which its triggering event occurred.” (g.n.)
In his opinion, the Reporting Justice stated that “the existence of the credit is directly linked to the legal relationship that is established between the debtor and the creditor, the link between the parties, since it is on this basis that, once the triggering event has occurred, the right to demand the payment (credit right) arises”.
Therefore, it was defined that, regardless of the date of the final and unappealable decision recognizing the credit against the debtor, for the purposes of determining whether it is subject to judicial reorganization, the day on which the triggering event occurs should be considered.
Thus, under the terms of the aforementioned article 49 of Law 11.101/2005, if the original event (triggering event) occurs prior to the request for judicial reorganization, the claim will be subject to the procedure, even if it is recognized at a later date.
Finally, it is important to note that the thesis established by the Supreme Court was established by the system of repetitive appeals, as provided for in article 1.041 of the Code of Civil Procedure, which means that it will affect the outcome of all ongoing cases that deal with this matter. It is therefore a judicial precedent that must be observed by all courts throughout Brazil.
Marcos Martins Advogados is attentive to the most recent rulings of the Superior Courts on Judicial Reorganization and is ready to assist you in resolving disputes in this area by applying modern legal institutes.
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