In a recent decision handed down in Special Appeal 2034482/SP, the Superior Court of Justice ratified the possibility of replacing a cash attachment with judicial guarantee insurance in civil enforcement actions, as set out in paragraph 2 of article 835 of the Code of Civil Procedure.
In this judgment, the appellant bank opposed the presentation of the guarantee insurance, claiming that this was an exceptional situation of substitution for any attachment made, and that there was no need to talk about offering guarantee insurance as an initial attachment, as in the case in question, also defending the priority nature of cash attachment in the legal order established by law.
However, the Superior Court held that in civil enforcement proceedings, bank guarantees and judicial insurance guarantees have the same legal effects as cash for guarantee purposes, as long as they are no less than the amount of the initial debt, plus thirty percent.
Dismissing the allegations made by the financial institution, the STJ judge held that “it would not make any sense to make the effectiveness of the provision conditional on the prior guarantee of the court according to the order established in art. 835 of the CPC and, only afterwards, to allow the replacement of the seized asset by a bank guarantee or judicial surety bond”.
Finally, the ruling also pointed out that this type of guarantee would even protect the creditor’s interests, since there is an insurance company, under the supervision of the Superintendence of Private Insurance (Susep), as guarantor of the amount pursued, while also protecting the working capital of companies facing enforcement proceedings.
Therefore, even though a bank guarantee or insurance guarantee does not, as a rule, have the same liquidity as a cash pledge, there is a jurisprudential understanding that their equivalence prevails due to an express legal provision (art. 835, 2nd, CPC).
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