The Superior Court of Justice (STJ) decides that the contractual clause waiving the guarantor’s right of release has no effect after the renewal of the surety contract. The claim of binding the guarantors for an indefinite period being inadmissible.
Based on this understanding, the panel granted partial relief to the appeal of two guarantors in order to reform a ruling that had considered valid a contractual clause that established the automatic renewal of the surety upon the renewal of the principal contract.
According to the case records, the appellants filed an action for release from surety in a credit-opening contract renewed between the company guaranteed by them and Banco do Brasil.
The judgment found the action unfounded, emphasizing that the guarantors had signed a contract assuming responsibility for the possible debts under the initial contract, as well as under any renewals of the agreement. The Court of Justice of São Paulo upheld the judgment.
In the appeal filed before the STJ, the appellants argued that they cannot be required to pay the debts incurred by the company by virtue of a generic clause of contract renewal to which they did not consent. They further maintained that the clause establishing that the surety provided by them in a loan taken out for the development of business activities was not subject to release was null.
Renewal of the surety contract
According to the reporting justice, the case law of the STJ has a consolidated understanding to the effect that the contractual clause establishing the automatic renewal of the surety along with that of the principal contract is valid.
In his view, if the guarantor wishes to request release, he must, during the period of contractual renewal, provide the notification set forth in Article 835 of the Civil Code, even where there is an express waiver of the right of release, but before the onset of default and the collection by the guaranteed party, against the guarantor, of the credit guaranteed by him.
The justice explained that the contractual clause waiving the right of release has no effect after the renewal of the surety contract, the claim of binding the guarantors for an indefinite period being inadmissible.
“It offends legality to provide for a perpetual contract, which would occur if the binding of the surety to the principal contract and the automatic renewal of the latter were accepted without the right of the guarantors, bound under a contract of a gratuitous nature, to see themselves released from this obligation,” he observed.
Release
The reporting justice states that the discharge arising from the request for release, however, does not result from the mere indefiniteness of the surety contract, as suggested by the author of the appeal, but takes effect from the end of the 60-day period, counted from the notification or from the summons of the defendant in the release action.
“Notwithstanding the possibility of release, it does not produce retroactive effects in relation to the debts verified before the release request and, moreover, it must respect the 60-day period set forth in the Civil Code, Article 835, in relation to non-locative sureties, counted, in this case, from the summons of the defendant.”
In the case analyzed, the justice decided that it is not appropriate to grant the request for release as of the renewal of the originally concluded contract, but only after the notification, which, in this instance, occurred with the summons of the defendant, the guarantors still remaining liable for the default occurring 60 days after this date, pursuant to Article 835 of the Civil Code.
In granting partial relief to the special appeal, the reporting justice found the release request well-founded, with effects taking place after the end of the 60-day period from the summons of the defendant.
Source: STJ
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