The Fourth Panel of the Superior Court of Justice (STJ), unanimously, decided that a guarantor is not released from their guarantee in a situation in which the tenant delivers movable assets to honor debts relating to obligations provided for in the lease contract. Unless this is accepted by the lessor.
For the panel, even if the lessor does not return the movable assets left by the tenant, using and deteriorating them, and even if such assets have sufficient value to cover the debt, this does not release the guarantor from their guarantee.
See also:
Authorization of the guarantor’s spouse is necessary to settle debts of a lease contract
In the case analyzed by the panel, two guarantors enforced for a debt set out in an extrajudicial enforceable instrument based on a commercial lease contract filed a motion to stay the enforcement (embargos à execução), alleging that they were not responsible for various overdue water, electricity and condominium bills. They further alleged that the amount of the debt was not liquid and certain and that there had been an excess of attachment.
At first instance, the allegations of passive lack of standing, the preliminary issue of suspension due to external prejudiciality on account of a possessory action, and the argument of excess of attachment were rejected. The Court of Justice of São Paulo confirmed the judge’s understanding.
Before the STJ, the guarantors stated that the ruling was omissive and that there had been an error in the judgment as regards the need to suspend the enforcement. They further stated that any claim to which the creditor could be subrogated should also be preserved in favor of the guarantor, and that the movable assets left as payment by the tenant could be subrogated by both the creditor and the guarantors.
Enforcement
The reporting justice, Justice Luis Felipe Salomão, explained that the Code of Civil Procedure provides that the filing of any action relating to a debt set out in an enforceable instrument does not inhibit the creditor from promoting the enforcement. The justice emphasized that this is also the understanding of the STJ.
Thus, according to Salomão, “the credit provided for in an enforceable instrument must be regarded as sound, even if there is some judicial decision pending in its respect, given that the reckless aim of a possible cognizance action may have only the purpose of obstructing the satisfaction proceeding, demoralizing the enforceability of the enforceable instrument.”
He emphasized that, in the case analyzed, there was an action for the enforcement of rents filed by the appellee, a motion to stay the enforcement filed by the guarantors, and an action for the recovery of possession of the movable assets (left in the property) brought by the tenant against the lessor.
Does not release the guarantor
In denying the special appeal, the reporting justice explained that suretyship is the contract by which the guarantor guarantees, before the creditor, an obligation assumed by the debtor in the event of default, placing all of their assets at the disposal in favor of the debt.
In the case under analysis, both the judgment and the appealed ruling ruled out the possibility of releasing the guarantor, on the argument that the existence of the movable assets in the possession of the property’s lessor did not grant him any privilege or guarantee in relation to the debtor that could be transferred to the guarantors.
According to Salomão, the movable assets given as payment “did not even form part of the contract at the time the guarantee was established,” which did not entail “an aggravation of the guarantor’s situation because he never relied on them for the granting of the suretyship.”
“I consider that, in this instance, there is no basis to say that the creditor’s act made impossible the subrogation of the guarantors, now appellants, in their rights and preferences, simply because the appellee did not assume any right or preference in the assets offered by the tenant that could come to be subrogated by the appellants. On the contrary, had the creditor accepted an object different from that which constituted the obligation, then, indeed, he could see his personal-guarantee security, in some way, set aside,” he pointed out.
Source: STJ
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