The Superior Court of Justice (STJ) denied the special appeal of two partners who were attempting to annul the attachment of corporate shares in companies undergoing judicial reorganization proceedings, on the understanding that there is no legal prohibition against the measure.
The appeal originated in an enforcement proceeding brought by a company to collect a debt of approximately R$ 595 thousand. The court of first instance granted the request for attachment of the corporate shares of the debtors in six business companies, two of them under judicial reorganization.
Against this decision, two of the debtors appealed, arguing, among other points, that the attachment of shares imposes upon the partners the entry of a person foreign to the corporate body, to the detriment of the affectio societatis. They further alleged that, the reorganization plan of the two companies having been approved, the replacement of administrators in this case would have to be approved by the creditors’ assembly.
The Court of Justice of São Paulo rejected the appeal, considering that the reorganization of the legal entity does not prevent the judicial constriction of assets belonging to the partners.
Attachment of corporate shares
The author of the prevailing opinion in the judgment of the special appeal, Justice Villas Bôas Cueva, stated that, under the terms of article 789 of the Code of Civil Procedure (CPC), the debtor is liable for its obligations with all of its assets – among which are included the shares it may hold in a simple or business company –, except for the restrictions established by law.
The Justice cited precedents of the STJ to the effect that the attachment of corporate shares is possible to secure the payment of the partner’s private debt, as there is no legal prohibition nor affront to the affectio societatis, since the constriction does not necessarily lead to the inclusion of new persons in the corporate body.
As to the hypothesis of a company under judicial reorganization, the magistrate noted that there could be a restriction on the liquidation of the attached shares, but not on the attachment itself.
Once the shares are attached – the Justice explained –, some possibilities open up in the enforcement, as provided by article 861 of the CPC. The first is the offering of these shares to the other partners, who may acquire them to avoid the liquidation or the entry of third parties into the company.
If there is no interest from the other partners, the possibility of acquisition passes to the company – which, in principle, according to the Justice, would not be viable in the case of judicial reorganization, as there are no available profits or reserves, nor is it possible to dispose of fixed-asset property without judicial authorization.
Extension of the term
“It is to be considered, however, that article 861, paragraph 4, item II, of the CPC allows for the extension of the term for the payment of the amount relating to the share in cases where there is a risk to the stability of the company. Thus, depending on the phase the judicial reorganization is in, the court may extend the term for payment, awaiting its conclusion,” he stated.
For the Justice, there is, in principle, no legal prohibition against the attachment of shares of a company under reorganization, “in view of the multiplicity of situations that may occur in the continuation of the enforcement.”
“Any interference of the attachment of a corporate share in the judicial reorganization of the company must be analyzed as the enforcement proceeds, and cannot be prohibited from the outset, in the abstract, with the judges (of the enforcement and of the judicial reorganization) being able to avail themselves of the institute of cooperation dealt with in article 69 of the CPC,” he emphasized.
Also read:
Reorganization of an economic group – proof of operation for more than two years
Source: STJ
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