An aval (suretyship) on a promissory note without spousal consent is valid, but ineffective with respect to the spouse who did not consent to it. In this type of case, the special legislation governing promissory notes applies, which dispenses with the spouse’s authorization.
With this understanding, the Third Panel of the Superior Court of Justice (STJ) rejected the appeal and upheld a ruling that found valid the aval provided by a pair of businessmen without the signature of the wife and the partner.
See also:
A married person does not need the spouse’s approval to guarantee a credit instrument
The reporting justice of the appeal, Justice Nancy Andrighi, emphasized that, although the absence of consent does not have the effect of invalidating the aval, the spouse and the partner may not bear, with their assets, the guarantee given without their consent, and the marital half-share (meação) relating to the couple’s common property must be protected, as decided in the appealed ruling.
Promissory note without spousal consent
In the case under analysis, the wife and the partner of the guarantors appealed seeking the application of the general rule set out in Article 1,647 of the Civil Code, which deals with spousal consent.
The reporting justice stated that the rule of spousal consent should not be applied to all credit instruments, especially to those that are typical or named, as is the case with promissory notes, since the special law applicable to the case (Geneva Uniform Law) does not impose this same condition.
“To condition the validity of the aval given on a promissory note upon the consent of the guarantor’s spouse, especially in the universe of business negotiations, is to weaken it as a personal guarantee and, consequently, to compromise the circularity of the instrument on which it is given, reducing its negotiability; it is to add to the credit instrument a factor of insecurity, inasmuch as, in the chain of endorsements that drives its circulation, the holder, not infrequently, is unaware of the personal conditions of the guarantors,” the justice said.
Praiseworthy intention
Nancy Andrighi recalled that under the Civil Code of 1916 a simple written declaration was sufficient to provide an aval, but the new code came to require spousal consent from a married guarantor, except under the regime of absolute separation of property, under penalty of the act being deemed voidable.
The reporting justice emphasized that the legislator’s intention to protect the family’s assets is praiseworthy, but this purpose must be guided by the protection of the third party in good faith, in light of the principles that govern bill-of-exchange (cambial) relationships.
“It is worth emphasizing that credit instruments are the principal instrument for the circulation of wealth, by virtue of the legal-bill-of-exchange regime that confers upon them the attribute of negotiability, arising from the possibility of transferring the credit recorded in them,” she commented.
The reporting justice further stated that these instruments are founded on a relationship of trust between creditors, debtors and guarantors, inasmuch as the acts they enter on the instrument bind the existence, content and extent of the credit transacted.
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Source: STJ
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