Post by account_disabled on Mar 12, 2024 0:21:26 GMT -5
The 3rd Panel of the Superior Court of Justice considered valid the guarantee provided by the partners of a company to guarantee a purchase and sale business whose guarantee instrument indicated, as surety, one of its branches, based in Betim (MG), while the transaction commercial was carried out by another branch, located in Contagem (MG).
reproduction
Reproduction STJ makes the guarantee valid for a branch that did not participate in the business
The appeal analyzed by the STJ originated from the execution of duplicates representing the business. The partners maintained their passive illegitimacy to answer for the debt, on the grounds that the guarantee was provided in favor of the Betim branch, but the purchase and sale operation that gave rise to the duplicates was carried out by the Contagem branch, both with different CNPJs. .
The first degree court considered Portugal Mobile Number List the allegation unfounded, but the Court of Justice of Minas Gerais recognized the illegitimacy of the partners, on the grounds that, if the subsidiary has the autonomy to close business without the authorization or intermediation of the head office or other subsidiaries , guarantee contracts whose content is expressly restricted to the object of the agreements entered into by it cannot guarantee obligations of other subsidiaries.
The rapporteur of the case at the STJ, minister Marco Aurélio Bellizze, explained that, in accordance with the sole paragraph of article 969 of the Civil Code, the subsidiary, as well as the branch and the agency, is conceived as a secondary establishment, established by the individual entrepreneur or by a business company, with a certain functional organization in its own location, but being subordinate in all administrative, economic and business aspects to its founder.
The commercial establishment, highlighted the judge, is understood as being "any complex of goods organized, for the exercise of the company, by an entrepreneur or business company", and, although it can be identified individually, it is functionally organized and interconnected to the establishment main, composing a unit, with a specific purpose assigned by the entrepreneur.
"It is, therefore, an object of law, and not a subject of law, which is why it does not, and could not, by definition, legitimize legal relations in any of its poles," he said. According to the minister, the branch is an integral part of the legal entity's assets and cannot be understood as a personalized entity other than it.
"In view of this, the individualization of the company's assets, through the creation of branches, in no way undermines the equity unity of the legal entity, nor does it represent the creation of a new legal entity, with its own corporate structure and social contract", he stated.
In the case under analysis, Bellizze verified that the guarantee was provided for the benefit of the business company, and that it was not important, for its validity and effectiveness, any indication of the establishment in the respective instrument.
"The debtor, the secured business company, is liable for its debts with its entire assets, which, as we have seen, is also made up of the secondary establishment (the branch). It is completely inconceivable, therefore, to admit a guarantee provided for the benefit of a secondary commercial establishment, unfit to assume obligations", he highlighted.