The guarantor of a lease contract must be jointly and severally liable for the rental debts, even if he did not consent to the contractual amendment that provided for the renewal of the contract. This is the understanding of the Third Panel of the Superior Court of Justice (STJ) in the judgment of a special appeal.
In it, a guarantor sought recognition of the extinction of the guaranty for not having signed the contractual amendment that increased the amount of the rent and renewed the lease term.
The Court of Justice of São Paulo (TJSP), despite recognizing that the guarantor did not sign the amendment, held that the guaranty provided would persist until the end of the lease, with the sole reservation that there would be no liability for the new amount agreed between lessor and lessee.
Decision – At the STJ, the reporting justice of the case voted in the same sense. And she cited article 39 of Law 8,245/91, which establishes that “unless there is a contractual provision to the contrary, any of the guarantees of the lease extends until the effective return of the property.”
The reporting justice pointed out that the law allows the guarantor to release himself from the obligation by means of a notice of termination, recognizing that the decision to no longer be liable for the rental debts must come from the guarantor himself, under the terms of article 835 of the Civil Code of 2002.
“In the hypothesis under judgment, since there is no contractual clause contrary to the provision of article 39 of the Tenancy Law – that is, one that releases the guarantors from liability until the handover of the keys – and, likewise, no release from the guaranty by the guarantors, the provision of the special law must prevail as to the subsistence of the guaranty provided,” the reporting justice concluded.
With regard to the contractual amendment, she also upheld the understanding of the TJSP that the liability of the guarantors remains limited to the rent amount provided for in the original contract and in accordance with the adjustment index provided for therein.
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