If the guarantor pays in full the debt that is the subject of the lease contract, he becomes subrogated to the rights of the original creditor – the landlord –, with all the elements of the original obligation being maintained, including the limitation period to exercise the right of recourse against the guaranteed tenant.
Based on this understanding, the Third Panel of the Superior Court of Justice (STJ) decided that the limitation period applicable to a guarantor’s claim to exercise the right of recourse against the tenant is the same that the landlord would have to claim payment of the rents.
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The original action, for the enforcement of an enforceable instrument, was filed against a restaurant, in view of the payment, by the guarantors, of a lease debt in the amount of R$ 200 thousand. The defendants raised a defense of pre-enforceability, alleging the occurrence of limitation.
The judgment recognized the limitation and declared the proceedings extinguished. The Court of Justice of São Paulo (TJSP), however, granted the guarantors’ appeal, understanding that the applicable limitation period would not be that of the collection of rents, but rather the one arising from the subrogation, without a specific legal provision.
Change of code
The reporting justice at the STJ, Justice Nancy Andrighi, explained that, in the case analyzed, when the Civil Code of 2002 came into force, more than half of the five-year limitation period provided for in the previous law had already elapsed, “which is why the limitation period counted from the date of payment of the debt applies”.
“The guarantor who pays in full the debt that is the subject of a lease contract becomes subrogated to the rights of the original creditor (landlord), with all the elements of the original obligation being maintained, including the limitation period”, she stated.
The debt was paid by the guarantors on December 15, 1999, under the validity of the former Civil Code, at which point the counting of the limitation period to collect from the defaulting tenants began. The justice expressly recorded that, when the CC/2002 came into force, more than half of the limitation period of the previous law had already elapsed – five years, provided for in article 178, paragraph 10, IV, of the CC/1916 –, which is why the limitation period of the former code applies, counted from the date of payment of the debt.
“Therefore, given that the initial term of the limitation period is the date of payment of the debt (12/15/1999), it follows that the limitation of the guarantors’ claim was completed on 12/15/2004. It so happens that the action was only filed on 01/26/2005, making it imperative to recognize the limitation”, she stated.
Judgment reinstated
Nancy Andrighi emphasized that the guarantor, “upon subrogating himself to the landlord’s rights, cannot have a limitation period longer than that granted to the original creditor himself to exercise his claim for receipt of the lease debts”.
The justice cited a recent ruling of the Third Panel, which understood that the limitation period guaranteed to the guarantor, to claim the reimbursement of the amounts spent, is the same applicable to the original legal relationship, modifying only the active subject (creditor) and also the initial term of the limitation period – which, in the case, will be the date of payment of the debt by the guarantor.
Upon granting the appeal of the guaranteed parties, Nancy Andrighi reinstated the judgment that recognized the occurrence of the limitation, including with respect to the burden of loss of suit.
Source: STJ
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