Post by account_disabled on Feb 19, 2024 1:40:04 GMT -5
Circumstance that actually suggests a change in the solvency of one of the parties -, if it was lawful for the other to withhold its performance, it was equally lawful for it to reduce the volume of products sold, payment deadlines and of credit, in line with the adage that whoever can do the most can do the least. […]”
(REsp 1.279.188-SP. Rapporteur min. Luis Felipe Salomão. 4th Panel. Judged on: April 16, 2015. DJe: June 18, 2015).
It is also important to highlight that, recently, the court of the 7th Civil Court of the Central Civil Court of São Paulo, decided to grant early protection, in the case files 1122825-17.2023.8.26.0100 [6] , to determine the suspension of collection of amounts relating to purchases made by consumers with the company 123 Milhas, which is in judicial recovery and has stopped delivering travel packages, as well as the refund of the amount paid by customers.
Furthermore, it is possible to conclude specific guarantee situations against the risk of non-compliance, which are derived from the standard provided for in article 477 of the Civil Code. Article 495 of the CC, for example, authorizes Telegram Number Data the seller to suspend delivery of his installment until the buyer provides him with a guarantee of performance, even if, under the contract, he had to pay first. Article 590 of the CC, in turn, gives the creditor of the loan contract the possibility of demanding a performance guarantee regarding the amount to be repaid by the borrower.
Finally, we highlight Statement No. 438 of the V Civil Law Conference organized by the Federal Justice Council, which provides that: “The exception of insecurity, provided for in art. 477, may also be opposed to the party whose conduct clearly puts at risk the execution of the contractual program” .
According to the doctrinal statement, if the contractor's behavior puts at risk the observance of the contractual program, the principle of loyalty allows the party who has a fair fear of not seeing the contract fulfilled, to demand, before executing what he was obliged to do, , suitable guarantee or fulfillment of someone else’s performance. Good faith prevents the contracting party from using different criteria to judge and judge himself. Therefore, it is not permitted to claim compliance with the pact whose behavior suggests non-compliance.
Therefore, it should not be accepted that the defaulting contractor intends to perform another party's performance, even if, in principle, the contract authorizes it. This is the application of tu quoque, that is, the unacceptable exercise of a legal position of advantage [7] . This is why the doctrine supports the possibility of handling the exception of insecurity whenever the behavior of the other contracting party puts at risk the satisfaction of the desired result with the legal transaction.
That said, it is possible to conclude that, given the growing scenario of companies that seek help from the judiciary and the Business Recovery Law, as recently reported by the Court of Justice of the State of Rio de Janeiro [8] , the institution of the exception of Insecurity begins to gain greater space and visibility as a relevant mechanism capable of reducing the risk of default attributed to the creditor in favor of the preservation of companies.
(REsp 1.279.188-SP. Rapporteur min. Luis Felipe Salomão. 4th Panel. Judged on: April 16, 2015. DJe: June 18, 2015).
It is also important to highlight that, recently, the court of the 7th Civil Court of the Central Civil Court of São Paulo, decided to grant early protection, in the case files 1122825-17.2023.8.26.0100 [6] , to determine the suspension of collection of amounts relating to purchases made by consumers with the company 123 Milhas, which is in judicial recovery and has stopped delivering travel packages, as well as the refund of the amount paid by customers.
Furthermore, it is possible to conclude specific guarantee situations against the risk of non-compliance, which are derived from the standard provided for in article 477 of the Civil Code. Article 495 of the CC, for example, authorizes Telegram Number Data the seller to suspend delivery of his installment until the buyer provides him with a guarantee of performance, even if, under the contract, he had to pay first. Article 590 of the CC, in turn, gives the creditor of the loan contract the possibility of demanding a performance guarantee regarding the amount to be repaid by the borrower.
Finally, we highlight Statement No. 438 of the V Civil Law Conference organized by the Federal Justice Council, which provides that: “The exception of insecurity, provided for in art. 477, may also be opposed to the party whose conduct clearly puts at risk the execution of the contractual program” .
According to the doctrinal statement, if the contractor's behavior puts at risk the observance of the contractual program, the principle of loyalty allows the party who has a fair fear of not seeing the contract fulfilled, to demand, before executing what he was obliged to do, , suitable guarantee or fulfillment of someone else’s performance. Good faith prevents the contracting party from using different criteria to judge and judge himself. Therefore, it is not permitted to claim compliance with the pact whose behavior suggests non-compliance.
Therefore, it should not be accepted that the defaulting contractor intends to perform another party's performance, even if, in principle, the contract authorizes it. This is the application of tu quoque, that is, the unacceptable exercise of a legal position of advantage [7] . This is why the doctrine supports the possibility of handling the exception of insecurity whenever the behavior of the other contracting party puts at risk the satisfaction of the desired result with the legal transaction.
That said, it is possible to conclude that, given the growing scenario of companies that seek help from the judiciary and the Business Recovery Law, as recently reported by the Court of Justice of the State of Rio de Janeiro [8] , the institution of the exception of Insecurity begins to gain greater space and visibility as a relevant mechanism capable of reducing the risk of default attributed to the creditor in favor of the preservation of companies.