When the guarantor notifies the landlord of his intention to be released from the obligations of the surety while still within the lease term set out in the contract, this discharge of the guarantor will only take effect 120 days after the date on which the lease becomes one of indefinite term, and not from the date of the notification.
This understanding was established by the Third Panel of the Superior Court of Justice (STJ) when interpreting article 40, item X, of Law No. 8,245/1991, in a lawsuit in which the guarantors claimed that their liability would have ended 120 days after delivery of the notification to the landlord. According to the panel, even though the guarantors may notify the landlord of their intention to be discharged – as occurred in the case records – its effects are only produced during the period in which the contract is of indefinite term.
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Discharge of the guarantor
According to article 40, item X, of the Tenancy Law, the landlord may require a new guarantor or the replacement of the type of guarantee in the event of extension of the lease for an indefinite term, “once the landlord has been notified by the guarantor of his intention to be discharged, remaining liable for all the effects of the surety for 120 days after the notification to the landlord”.
According to the records that gave rise to the special appeal, the owners leased a commercial property to a microenterprise in July 2009, for a term of one year. Two guarantors were named in the contract.
After the filing of an enforcement action to collect lease charges relating to the period between August and December 2010, the guarantors filed a defense to the enforcement on the grounds that they had notified the landlords that they were releasing themselves from the surety as of March 2010.
Lack of standing
The Court of Justice of Rio Grande do Sul (TJRS) concluded that the guarantors lacked standing to answer for the debts due as of August 2010. According to the court, although the discharge notification was given during the course of the lease while it was still for a fixed term, the 120-day period provided for in Law No. 8,245/1991 would have ended when the contract term expired, in July 2010.
Further according to the TJRS, considering that article 40 of the Tenancy Law establishes that the guarantors remain liable for a period of 120 days counted from the date the notification was received by the landlord – which, in the case records, coincided with the end of the period set for the validity of the contract – it is understood that the guarantors did not agree to the extension of the contract for an indefinite term.
Solvency
Justice Paulo de Tarso Sanseverino, the reporting judge for the appeal at the STJ, stated that article 835 of the Civil Code, although it does not apply directly to the case records, provides for the possibility of the guarantor being discharged from the surety at any time, remaining liable for its effects for 60 days after notification of the creditor. Likewise, article 40, item X, of Law No. 8,245/1991 provided for the temporal indefiniteness of the surety in the lease contract, equally maintaining the binding to the obligations for a certain period after the notification.
According to the reporting judge, during the period in which the lease unfolds for a fixed term, the binding of the guarantor to the obligations of the lease contract, extended to him by the surety contract, does not derive from the extension conferred by article 40 of the Tenancy Law, but from the contract by which the guarantor undertook to guarantee the solvency of the obligations of the guaranteed party arising during the lease period (or during the period set out in the surety contract).
In the same vein, the reporting judge pointed out, article 39 of the same law recognizes that, regardless of the lease term – whether fixed or indefinite – the guarantor, as a rule, will guarantee the guaranteed contract until the handover of the keys.
“From this perspective and in the specific case, the guarantors cannot be deemed to lack standing in the present enforcement based on the discharge notification carried out and understood, according to the appealed ruling, within the limits of item X of article 40 of Law No. 8,245/1991, which is why the reversal of the ruling is required”, the Justice concluded.
Although it granted the special appeal and dismissed the guarantors’ lack of passive standing, the panel ordered the records to be remitted to the TJRS for analysis of other points discussed in the appeal, such as the collection of months subsequent to the alleged vacating of the property.
Source: STJ
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