A reduction in the attachment of revenue from 30% to 10% for a company in debt to a financial institution was a decision this month by the TJ/SP. The panel considered that a higher amount could compromise the maintenance of the establishment’s working capital.
A company, in debt to a bank, appealed a decision of the lower court that ordered the attachment of 30% of its net revenue. The justification pointed out that the decision is not in accordance with due process of law and offends the principle of the preservation of the company, set forth by Law 11,101/05. Considering that the necessary requirements that would authorize the attachment were not met.
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The company stated that if the decision were maintained, it would make the exercise of business activity unfeasible. Which would result in its closure and mass layoffs.
Finally, it pleaded for the suspension of the original proceeding, since the matter of attachment of revenue is the subject of Theme 769 of the STJ, which ordered the suspension of the proceedings dealing with the question.
The reporting judge of the case considered that, although attachment continues to be the rule in the legal order, since it has the purpose of guaranteeing the maximum effectiveness of execution for the satisfaction of the credit, it is necessary to observe, concomitantly, the principle of the least burden on the debtor, so that the execution proceeds by the least burdensome means.
“The attachment of part of the debtor company’s revenue, as a legal mechanism of patrimonial excussion aimed at the exercise of the right held by the creditor, cannot compromise or make unfeasible the activity of the party under execution, in deference to the principle of the conservation of the company (…).”
The reporting judge further said that it is incumbent upon the magistrate to ensure that the percentage to be committed to the fulfillment of the pecuniary obligation does not jeopardize the carrying out of the company’s activity.
“The indebtedness and the difficulty in locating assets of its property are elements that confirm the situation of financial crisis faced by the appellant, certainly deepened as a result of the Covid-19 pandemic.”
The panel concluded that, considering that the law imposes the harmonization between the principle of procedural celerity and that of the preservation of the company, it would not be reasonable to authorize the attachment of nearly 1/3 of the revenue obtained monthly by the legal entity from the sale of its products and services, since the high amount could compromise the maintenance of the working capital necessary for the maintenance of the establishment.
“Therefore, with respect to the quantum, it is reasonable to reduce the attachment from 30% to 10% on the appellant’s monthly net revenue, so as not to compromise the debtor’s solvency.”
The appellate judges, finally, reduced the attachment to 10% of the company’s monthly net revenue.
Source: Migalhas
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