The assignment of credit, provided for in art. 286 et seq. of the Civil Code, can be conceptualized as a bilateral or synallagmatic legal transaction, free of charge or onerous, by which the creditor, the active subject of an obligation, transfers to another, in whole or in part, his position in the obligatory relationship.[1] The assignment of credit is a legal transaction which is free of charge or onerous, by which the creditor, the active subject of an obligation, transfers to another, in whole or in part, his position in the obligatory relationship.
In principle, any credit can be the object of an assignment of rights, whether it is overdue or not, except for objections inherent in the nature of the credit, legal or agreed with the debtor.
The requirements for the validity of the legal transaction must also be observed, which are: a capable agent, a lawful, possible and determined object and a form prescribed or not defended by law, as set out in art. 104 of the Civil Code.
It should also be noted that Law 11.101/05 expressly admits the assignment of credit by the creditor and does not require any consent from the company under reorganization. However, article 83, paragraph 4, states that “Labor claims assigned to third parties will be considered unsecured”.
In general, the assignment of a claim covers all its accessories, including any preferences (Civil Code arts. 287 and 349), however, in the case of labor claims in judicial reorganizations and bankruptcies of the employer, the special law makes an exception to the rule, since the assignee does not retain the privilege of the original creditor and the assigned claim is reclassified as unsecured.
Fábio Ulhoa Coelho’s doctrine helps to clarify the legislator’s protectionist motivation:
By excepting the general rule of transfer of preference, the law actually wants to protect the employee. By determining the downward reclassification of the claim, it practically makes it impossible to form a market for the acquisition of labor claims due in bankruptcy. If the law didn’t make this exception, speculators would have an interest in harassing creditor employees in order to acquire their claims at a significant discount. Employees, who are usually exposed to serious difficulties due to their employer’s bankruptcy, would be easy prey for these speculators. By ordering downward reclassification, the law discourages such negotiations and protects holders of labor claims.[2]
The rule has also been ratified by the Superior Court of Justice [3], which points out that the ’employee’ status of the holder of the labor claim is precisely the very personal circumstance that justifies the legal privilege granted to the respective claim.
Thus, as the legal preference derives from the personal condition of the holder and not from the claim itself, when it is assigned to a third party outside the relationship, the claim will be reclassified as unsecured.
However, the issue becomes controversial when it comes to subrogation of the labor claim by a subsidiary or joint creditor, which occurs when a third party solves the labor obligation, in this case, compulsorily by court order or even by forced execution.
It is true that Article 83(4) specifically deals with assignment, and makes no mention of subrogation. Furthermore, it should be borne in mind that in subrogation, payment is not voluntary; on the contrary, it is imposed by virtue of subsidiarity or solidarity. Thus, even if the law is silent, it seems to us that the subrogating creditor should retain the privileges of the original labor creditor. However, this is not a peaceful solution.
There is also controversy over the voting rights of the assignee or subrogated creditor. Can they exercise this right during creditors’ meetings, deciding on issues such as approval of the judicial reorganization plan?
The São Paulo State Court of Justice[4] has already ruled that the right to vote is an accessory to the credit right, and not a very personal right, so the right to vote could be exercised. However, as it is a procedural right, certain positive requirements must be present, such as the due qualification of the claim, as well as the absence of any impediment, such as those provided for in art. 43 of the Judicial Reorganizations and Bankruptcy Law.
In short, the subject of Judicial Reorganizations always generates thought-provoking debates fueled by case law, which is often inconstant, and by concrete cases that are increasingly casuistic, both of which are always closely monitored by our specialized and always up-to-date team, essential factors for the success of the cases we sponsor.
[1]TARTUCE, Flávio. Manual of civil law. 2. ed. São Paulo: Método, 2012. único. p. 380.
[2] COELHO, Fábio Ulhoa. Comentários à nova lei de falências e de recuperação de empresas. 4. ed. São Paulo: Saraiva, 2007. p. 238.
[3] REsp 1.526.092⁄SP, Rel. Minister MARCO AURÉLIO BELLIZZE, THIRD COURT, judged on 15⁄3⁄2016, DJe 1º⁄4⁄2016 and AgInt no AGRAVO EM RECURSO ESPECIAL Nº 818.764/SP Rel. Minister RICARDO VILLAS BÔAS CUEVA, judged on 07/06/2016.
[Recoveries and Bankruptcies Chamber, AI nº 431.567-4/0-00, rel. Pereira Calças, j. 15.3.2006. In the same vein, see AI nº 430.714-4 from the same Chamber/4-00 e o AI nº 433.182-4/7-00
