To collect or not to collect: decide on the execution or recovery of the guarantees in prescription – Commentary
São Paulo State Court
Towards the end of 2021, the Brazilian Superior Court of Justice (STJ) issued a decision regarding Brazilian agrifood bonds (for more details, see “Heavy clouds with a chance of rain? Not for agribusiness bondholders, says Brazil’s Superior Court of Justice”).
This was not the only obligation subject to the STJ judgment. The bank accounts (OCC) were also called into question, in the context of a challenge to the prescription of their collection(1).
A Brazilian company brought a collection action against a debtor company, on the grounds that the CCB issued by the debtor was due and unpaid.
The debtor challenged the creditor on the ground that it was necessary to apply the limitation period, taking into account the three-year period provided for by the Convention providing a Uniform Law for Bills of Exchange and Promissory Notes (Geneva, 1930 ) (the Uniform Act).
The Uniform Law was passed by the Brazilian Congress in 1966 with Decree No. 57.663/66. It has been in force in Brazil ever since.
The São Paulo State Court dismissed the debtor’s claim on the grounds that the three-year limitation period mentioned in the Uniform Law only applied to the execution of a CCB, not to its collection .
The debtor appealed to the STJ, claiming that the decision of the São Paulo State Court violated the statute of limitations provided by the Brazilian Civil Code, the Uniform Law and Law No. 10.931/2004, which authorized the CCB issuance
At the end of 2019, a review of the debtor’s appeal began. In early 2020, Judge Ricardo Villas Boas Cueva dismissed the appeal on the grounds that it could not go to trial.
The debtor then filed a motion to allow the review of the appeal by the third chamber of judges of the STJ. This request was granted in April 2021 and the third chamber opened the trial.
After sessions held in August and September 2021, the Third Chamber issued its final decision, dismissing the appeal on the merits.
The third chamber’s reasoning was as follows:
- Brazilian law allows for two types of lawsuits concerning BCCs: lawsuits for execution, as referred to in the uniform law, and lawsuits for recovery.
- Proceedings for forced execution, under the uniform law, are prescribed by three years.
- The applicability of the uniform law to BCCs is admitted under Article 44 of Law No. 10.931 and previous STJ case law.(2) Therefore, the enforcement of CCBs is subject to a limitation period of three years.
- After the expiration of the three-year statute of limitations, no legal action can be taken. In such cases, Brazilian law allows the creditor to bring a recovery action – which is not as fast as an enforcement action – under the general limitation periods of the Brazilian Civil Code (Article 206(5 )(I)).
- The debtor’s appeal had not demonstrated why the STJ case law on the limitation period in the CCBs should not be applied in this case.
Judge Nancy Andrighi, agreeing with Judge Ricardo Villas Boas Cueva’s ruling on the appeal, also added that:
- the creditor may choose between enforcement or collection of the CCB under Brazilian law, as it deems most appropriate in the case; and
- the collection of a CCB is subject to the general prescription and its five-year period.
The third chamber unanimously rejected the debtor’s appeal and the collection of the deposit was assured to the creditor.
CCBs are ordinary bonds in Brazil, issued by legal or natural persons, as a promise of payment in favor of financial institutions or their equivalents. BCCs can also be issued in favor of foreign financial institutions. As a promise to pay, a CCB can be endorsed in favor of another creditor (whether or not that creditor is a financial institution). Endorsing a CCB to a third party is common in Brazil, since banks and financial institutions can sell the CCB to other parties.
CCBs are quite frequently issued as part of bank loans and can be executed rather than collected. Execution exempts the creditor from requesting recognition of the debt and may give rise to seizures of the debtor’s property. Collection, on the contrary, is filed when judicial acknowledgment of the debt is deemed. It is only after a decision granting the debt to the creditor that the latter can demand payment.
The STJ judgment referred to here is and will remain relevant, as it allows creditors to decide between enforcement or recovery of CCBs and the limitations of each.
For more information on this subject, please contact Paulo Guilherme de Mendonca Lopes or Alexandre Paranhos Tacla Abbruzzini at Leite Tosto E Barros Advogados Associados by phone (+55 11 3847 3939) or email ([email protected] Where [email protected]).
- STJ – Fourth Chamber, AgInt n° AREsp 1.525.428/PR, Rel Min Luis Felipe Salomão, d 5 November 2019, DJe 12 November 19; and
- STJ – Fourth Chamber, AgInt No. REsp 1.675.530/SP, Rel Min Maria Isabel Gallotti, d 26 Feb 19, DJe 06 Mar 2019.