Jorge Luiz Dantas
Lawyer at Marcos Martins Advogados
I – Introduction
The Science of Law has sought to understand and, where necessary, to regulate the uninterrupted evolution of social relations, especially since the 20th century. This scientific pretension was well summarized by Coelho[1] (2002):
With the failure of the experiment to centralize the economy, attempted by the Soviet Union and its satellite countries, it is clear that science cannot control social relations. If man is increasingly dominating nature scientifically, he cannot achieve the same dominance over society.
It is well known that the Law is always a few steps behind this evolution, not least because it depends on a factual substrate to assimilate the new legal relationships that are created, wait for conflicts to arise and then, via the inductive method, generalize certain conducts and regulate them.
It is also true that the current Civil Code changed the paradigm that existed in the previous code. In this sense, Tepedino’s[2] (1997) thoughts are salutary:
Property relations are functionalized to the dignity of the human person and to social values inscribed in the 1988 Constitution. For this reason, there is talk of a depatrimonialization of private law, in order to clearly demarcate the difference between the current system and that of 1916, which was patrimonialist and individualist.
This change brings the interpretation of the rules contained in the current Civil Code into line with the constitutional order established in 1988 and, consequently, in line with the social changes that emanate from it.
In this environment, it is also indisputable that business relations need answers that resolve their conflicts more quickly, since they cannot go on forever, otherwise they will put the brakes on the market, the economy, tax collection, society and the state itself. Therefore, it is justifiable that an institute originally created to deal with civil claims can be altered to resolve business claims, since the reasons behind them are different.
It is precisely in this context that the following distinction is made between the novation provided for in the Civil Code and that included in Law 11.101/05.
Novation under the Civil Code
The novation provided for in the Civil Code is a means of extinguishing a previous obligation, which is replaced by a subsequent obligation. It is an unsatisfactory means of extinction, since at no point does the credit cease to exist, but only the obligatory relationship that represented it.
There is thus the installation of a new obligatory relationship that extinguishes the previous one and at the same time extinguishes and creates rights relating to the credit included in it. In this sense, if the essential assumptions of novation are present, the guarantees and exceptions of both parties previously constituted are extinguished with the novated obligation, which, in a way, explains the significant decline of the institute, which has been replaced by the assignment of credit, since in this case the guarantees and exceptions are transferred to the assignees and are enforceable even by the debtor.
Very briefly, in addition to the assumptions of validity and existence of any legal transaction, the essential requirements of novation, according to Maria Helena Diniz[3], are: (i) the existence of a previous obligation, which is extinguished by the creation of a new one, which replaces it; (ii) the creation of a new obligation to replace the previous one, which has been extinguished; (iii) a new element and (iv) an unequivocal intention to novate.
Therefore, the novation provided for in the Civil Code is a form of extinguishment of an obligation, operating by means of an objective or subjective alteration to the content of the novated obligation which, for this reason, is extinguished. It undoubtedly establishes a new manifestation of the will of the parties with regard to the fulfillment of the obligation, which replaces the manifestation contained in the previous obligation.
It should be noted that the parties are not subject to any obligation, since the legal nature of novation is undoubtedly contractual. Although it is indicative of a problem in the fulfillment of the previous obligation, there is no way of affirming the existence of the assumption of a previous contractual or obligatory crisis.
Novation under Law 11.101/05
The novation provided for in article 59 of the Judicial Reorganization Law (Law 11.101/2005), in turn, has substantial particularities that set it apart from the institute contained in the Civil Code. It is worth reproducing this rule:
Art. 59: The judicial reorganization plan implies novation of credits prior to the request, and binds the debtor and all creditors subject to it, without prejudice to guarantees, subject to the provisions of Paragraph 1 of Art. 50 of this Law.
Paragraph 1 of article 50 reads as follows:
§ Paragraph 1 In the sale of an asset subject to a real guarantee, the suppression of the guarantee or its substitution shall only be admitted with the express approval of the creditor holding the respective guarantee.
It can be seen that the guarantees are maintained even if the obligations are novated, which does not mean a benefit for the creditors, but real compensation for the subjection to which they were subjected. The novation is imposed by law, as it is in line with its main objective, which is the preservation of the company (article 47 of Law 11.101/05). This subjection is expressed in article 49, as is the encouragement to creditors in the first paragraph of this article:
Art. 49: All claims existing on the date of the petition, even if not yet due, are subject to judicial reorganization.
§ Paragraph 1: Creditors of the debtor under judicial reorganization retain their rights and privileges against co-obligors, guarantors and those liable by recourse.
The legal framework contained in the Judicial Reorganization Law clearly distinguishes the novation that occurs there from the novation provided for in the Civil Code, so it is a gross error to raise issues of this institute in the context of judicial reorganization.
It must be stressed that novation in judicial reorganization depends on approval of the plan at the general meeting of creditors. Failure to approve the plan results in the judicial reorganization being converted into bankruptcy, which, in practice, is detrimental to creditors, especially unsecured creditors, hence the greater scope for negotiating discounts on amounts owed and extending payment deadlines.
In addition, judicial reorganization, with regard to the deliberations and approval of the plan, is governed by the majority principle, so that invariably there will be those who, even if they don’t agree with the approved plan, will be subject to it.
So, thinking about the essential requirements for novation in the Civil Code, we can say that in the Judicial Reorganization Law the intention to novate is significantly mitigated and that the new obligation does not completely extinguish the previous one, since the guarantees are preserved, unless expressly released in the plan.
Returning to the subject of the maintenance of guarantees in judicial reorganization, the STJ, in a Special Appeal, Resp nº 1.333.349/SP, under the rite of repetitive appeals (article 543-C of the CPC), established the following thesis:
The judicial reorganization of the main debtor does not prevent the continuation of executions, nor does it induce suspension or extinction of actions filed against third party joint debtors or co-obligors in general, by foreign exchange guarantee, real or fidejussório, since the suspension provided for in articles 6, caput , and 52, III, or the novation referred to in article 59, caput , do not apply to them, by virtue of the provisions of article 49, § 1, all of Law 11.101/05.
The matter is thus settled as regards the impossibility of extending to co-obligors in general the suspension of all the claims provided for in articles 6, caput, and 52, III, or the novation referred to in article 59, caput, by virtue of article 49, § 1, all of Law 11.101/05.
IV – Conclusion
In view of this, the allegation of novation with a view to exoneration of guarantees in the course of the reorganization process is innocuous, because as has been shown, it is not the same novation that is being dealt with in the Judicial Reorganization and Bankruptcy Law.
The role of the legal operator, in this step, should focus on guiding and informing the entrepreneur regarding the constitution of guarantees and their consequences, since in the judicial sphere there is no great likelihood of them being discharged.
[1] COELHO, Fábio Ulhoa. Commercial law course. 6. ed. São Paulo: Saraiva, 2002. v. 1, p. 04.
[2] TEPEDINO, Gustavo. 80 years of the Brazilian Civil Code: will a new Code meet the country’s needs? Revista Del Rey, Belo Horizonte, a. 1, n. 1, dez. 1997. p.17.
[3] DINIZ, Maria Helena. Course in Brazilian civil law: general theory of obligations. 17. ed. São Paulo: Saraiva, 2003. v. 2. p. 283 – 289.
