In a recent decision (REsp 2.106.765- CE ), the Superior Court of Justice (STJ) annulled the execution of a debt confession instrument linked to a commercial development contract (factoring).
Factoring, also known as faturization or fomento mercantil, can be described, in a simplified way, as a commercial transaction through which a certain company (faturizadora) acquires the credit rights of another company (faturizada), through advance payment of less than the amount acquired.
In this operation, the factoring company assumes the risks arising from the purchase of the receivables of the company being factored, such as the possible default of the debtor.
The nature of the factoring contract does not allow the parties, even if they consider the autonomy of will that governs contracts in general, to stipulate that the assignor (fatuer) is liable for the debtor’s solvency.
Thus, the STJ considered that the instrument of confession of debt, despite having enforceable force as provided for in article 784, III, of the CPC, is not valid when associated with the factoring contract, since the origin of the debt corresponds to a debt not subject to the right of recourse.
As a result, the factoring company has no right of recourse against the factored party due to default on the securities transferred, since this risk is of the essence of the factoring contract .
This STJ decision underscores the importance of a thorough examination of the clauses and contractual instruments involved in factoring. It also reinforces the need for transparency and legal compliance in the drafting and execution of complex commercial contracts.
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