Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
The possibility of replacing court deposits and appeal deposits with court-appointed surety bonds or bank guarantees is a controversial topic among the courts, whether in the labor, civil or tax spheres.
In the current crisis scenario amid the pandemic of the new coronavirus (Covid-19), companies are struggling to manage their working capital and meet payroll, supplier and tax payments in order to continue their business activity.
Many companies have a significant volume of judicial deposits, for example, to guarantee foreclosures, the withdrawal of which, in the current scenario, can be a significant help with the injection of cash, often allowing them to survive for the next few months.
To this end, some companies have applied to the courts to have these judicial deposits replaced by guarantee insurance duly regulated by the Superintendence of Private Insurance (SUSEP) and have already obtained decisions favorable to the respective replacement, such as the Court of Justice of the State of São Paulo (TJSP) in a case involving tax foreclosure[1] and the Superior Labor Court (TST)[2] in a case involving foreclosure of a labor debt.
This is an alternative that, on the one hand, helps to preserve the cash flow of companies that have demonstrably had their solidity compromised as a result of the impact of the pandemic, and, on the other hand, does not jeopardize the guarantee of foreclosures.
The law firm Marcos Martins Advogados is always attentive to case law discussions on the subject and is available to its clients to find the best solution for their needs.
[1] TJSP; Interlocutory Appeal 3001505-77.2020.8.26.0000; Rapporteur: Luciana Bresciani; Judging Body: 2nd Chamber of Public Law; Atibaia Court – 1st Civil Court; Date of Judgment: 05/29/2020; Date of Registration: 06/01/2020.
[2] TST, Interlocutory Appeal in Appeal – 11104-46.2016.5.15.0014, Rapporteur Breno Medeiros, Published on May 21, 2020.
The TST also requires compliance with Joint Act TST. CSJT. CGTJ No. 01/2019, which provides for the use of judicial guarantee insurance and bank guarantees to replace appeal deposits and to guarantee labor enforcement.
