1 INTRODUCTION
Business dynamics require an intense need to establish legal relationships with third parties, with their own attributes and bias characteristic of their legal business in order to circulate goods, services and values in the market.
In this context, one of the pillars of business contracts is credit protection, providing greater security and effectiveness in legal relationships. To this end, however, it is essential that guarantees are provided for and stipulated, and knowing how to use them properly is a differentiator that guarantees the effectiveness of contracts and legal transactions. In addition to ensuring the expectation of credit satisfaction, it also removes any insufficiency in the debtor’s assets that might prevent them from settling their obligations.
Doctrine classifies guarantees as real and personal. A real guarantee is one that falls on movable or immovable property belonging to the contracting party or third parties. Examples of such guarantees are pledges, mortgages and fiduciary alienation.
A personal guarantee, on the other hand, is one that falls on a third party, either an individual or a legal entity, which will assume the obligations of the legal relationship entered into between the parties, in the event that the original debtor fails to comply with the agreement. In other words, a third party who is not directly part of the legal relationship will have the economic conditions to guarantee the effectiveness of the legal relationship entered into by others.
Personal guarantees include sureties and guarantors. Although commonly confused, guarantees and sureties have different foundations and applicability, as explained below.
- BOND
The concept of suretyship is set out in articles 818 et seq. of the Civil Code of 2002 (CC/02) and is understood as a contract entered into by a third party who undertakes to assume obligations entered into by the debtor vis-à-vis the creditor.
There is no need for the debtor to participate in the obligation, and it can even be established without their consent, or against their will. However, suretyship requires a grantor uxória, i.e. authorization from the guarantor’s spouse to grant suretyship, which is an essential requirement for its validity, except if they are married under the total separation of property regime. Granting a guarantee without a spouse’s consent is a voidable act, which can be remedied in court or ratified.
However, suretyships do not require a special form and only need to be formalized through a private or public instrument, either as part of the main contract or separately.
A priori, there is a legal prohibition on applying an extensive interpretation to the guarantor, as it is a beneficial contract, and he can only be compelled under the strict terms of the contract, according to Precedent 214 of the STJ. However, if the guarantee is not limited, it will include the main and accessory obligations, including legal costs.
With regard to the benefit of order, the guarantor may demand that the debtor’s assets be executed first, up to the point of contestation. However, this benefit may be expressly waived in the contract or solidarity may be established between the debtor and the guarantor, which is usually the case in business practice.
Bail is extinguished by terminating causes specific to obligations in general¹ . Death does not constitute a terminating cause, since the guarantor’s obligation is passed on to his heirs, limited to the debts existing up to the time of his death and cannot exceed the strength of the estate.
- AVAL
Article 887 of the CC/02 defines a credit instrument as a “document necessary for the exercise of the literal and autonomous right contained therein, only effective when it meets the requirements of the law”. The following are credit instruments: duplicate, promissory note, bill of exchange and check.
The guarantor is a personal guarantee given only on credit instruments that contain an obligation to pay a specific sum. It is, therefore, a foreign exchange act, which protects a legal relationship arising from a credit instrument.
The parties to a guarantee are: the guarantor (guarantor) and the guarantor (principal debtor).
The aval is constituted by an express declaration on the back or obverse of the security itself, with the simple signature of the guarantor on the security being a requirement for validity, and the guarantor becoming liable for the full settlement of the credit he has guaranteed if the principal debtor fails to comply. It should be noted that partial endorsement of the obligation is forbidden.
The creditor of the security is entitled to enforce payment of the debtor’s and guarantor’s obligation simultaneously, with no benefit of order due to the autonomy of the guarantee. The guarantor remains liable even if the guaranteed obligation is null and void, unless the nullity is due to a defect in form. As this is a commercial relationship, the simple signature of the spouse on the credit instrument is enough to validate the guarantor, dispensing with the need for a conjugal grant.
By paying the obligation on behalf of the principal debtor, the guarantor will have the right of recourse against the principal debtor.
- DIFFERENCES BETWEEN SURETIES AND GUARANTORS
Below is a comparative table to better visualize the differences between the two institutions:
Image 1 – Distinction between aval and fiança
Source: AQUINO, Leonardo Gomes de. (2016)
Marcos Martins Advogados reaffirms its commitment to excellence in the provision of legal services, identifying potential risks and indicating the most appropriate guarantees, giving greater security to legal transactions.
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BRAZIL. Civil Code. Law No. 10406, of January 10, 2002.
COELHO, Fábio Ulhoa. Commercial Law Course. Volume I. São Paulo: Saraiva, 2000, p. 403.
FORGIONI, Paula. General Theory of Business Contracts. São Paulo: Editora Revista dos Tribunais, 2010, p. 89.
GONÇALVES, Carlos Roberto. Brazilian Civil Law. Vol. III. São Paulo: Saraiva, 2012, p.569.
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