A transactional instrument that establishes new obligations, sets new deadlines and a form of payment is equivalent to a new contract. For this reason, the 3rd Panel of the Superior Court of Justice (STJ) decided to declare null the guaranty provided for a private settlement instrument, made without the authorization of the guarantor’s wife (without the authorization of the guarantor’s spouse), for the installment payment of debts from a property lease.
The rapporteur of the appeal, Justice Villas Bôas Cueva, reversed the judgment of the Court of Justice of Rio Grande do Sul (TJRS) which, based on the case law of the STJ regarding the guarantor’s liability in the extension of the contract and on Article 39 of Law 8,245/91, held that the settlement term did not constitute a new contract and, therefore, would not require the spousal authorization (authorization of the spouse).
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Guarantor is liable even without signing the contract extension
The transactional instrument is the document by which the parties agreed to the extinction of an obligation through mutual or reciprocal concessions. For the TJRS, the so-called Tenancy Law establishes that the guarantor is liable for the extension of the lease agreement until the effective return of the property, through the handover of the keys, regardless of whether the contract was, initially, for a fixed term.
The justice, however, emphasized that every legal transaction performed by married persons, except in the case of absolute separation of assets, must contain the consent of both spouses, as provided for in Article 1,647, item III, of the 2002 Civil Code.
“The thesis of the court of origin cannot prevail, given that the transactional instrument creates new obligations, sets a new deadline and form of payment, requiring the consent of the original contracting parties and any guarantors. Therefore, the settlement is a new contract,” stated Justice Cueva.
The lessors and the lessee entered into a commercial lease agreement for a property in Porto Alegre. The guarantor undertook, jointly and severally, to be liable for the entirety of the debts arising from the agreement throughout the term of validity, as well as for the period of extension of the contract for an indefinite term, until the vacating of the property.
Once the fixed term ended, the lessee extended the contract for an indefinite term and remained in the property. However, she became delinquent, ceasing to pay the rent and the ancillary expenses of the lease. The default motivated the execution of an extrajudicial settlement instrument, without the consent of the guarantor’s spouse, by which the debts due and unpaid up to that date were paid in installments.
However, the obligations stipulated in the instrument were also not fulfilled. The lessors then filed an enforcement action for the purpose of collecting the amounts owed, alleging that the guarantor and the lessee are directly liable for the debts, accounted for at almost R$ 48 thousand.
Authorization of the guarantor’s spouse
In his vote, Villas Bôas Cueva highlighted the application of Precedent (Súmula) 332 of the STJ, which establishes that a guaranty provided without the authorization of one of the spouses results in the total ineffectiveness of the guaranty. For the justice, because it was a “new contract,” the authorization of the guarantor’s spouse would be necessary for the guaranty to be valid.
“Whatever the legal nature of the instrument executed, the participation of the consorts is indispensable, which is why the absence of one of them causes the ineffectiveness of the guaranty provided,” he concluded.
With this understanding, the panel, unanimously, declared the nullity of the guaranty provided in the extrajudicial settlement and extinguished the judicial enforcement against the guarantors.
Read the judgment.
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