29/03/2019News
The judicial reorganization of the rural entrepreneur
On February 19th, Minister Marco Aurélio Bellizze granted "provisional injunction request no. 1.920-MT" and issued an urgent injunction requiring that the judicial reorganization of a rural producer include not only debts incurred after the producer's registration with the Commercial Registry, as per article 971 of the Civil Code, but also any and all debts, regardless of their date of creation. This decision points the way to a perfect solution to a pressing issue that has been plaguing agribusiness.
Of course, the decision is preliminary, but it indicates that the farmer's arguments impressed the minister, who stated that "in the case at hand, the appeal is reasonably controversial and sufficiently plausible to reveal the presence of a prima facie case."
It is curious that the recovery in agribusiness has faced resistance, which, fortunately, is gradually being overcome. The first obstacle consisted of the understanding that a non-entrepreneurial rural producer (who becomes an entrepreneur by simply expressing their will as per article 971 of the Civil Code) could only request recovery if they had been registered with the Commercial Registry for more than two years, a requirement of article 48, I, of Law 11.101/2005, the LREF. This obstacle has already been removed, since what the law requires in the aforementioned article 48 is the exercise of two years of regular activity and not two years of registration with the Commercial Registry.
The recovery in agribusiness has faced resistance, which, fortunately, is gradually being overcome.
This obstacle arose because there was some confusion with the previous law, Decree-Law No. 7,661/1945, which required, in its article 158, proof of "regularly engaging in commerce for more than two years," while the current law requires "regularly engaging in activities." A rural producer not registered with the Board, obviously, regularly engages in activities and can request recovery with registration for less than two years. In this sense: AI 2.037.064-59. 2013.8.26.0000 - TJ-SP; AI - CV nº 1.0000.17.026108-5/001 - TJ-MG; AI 2.048.349-10.2017.8. 26.0000 - TJ-SP; AI 2.251.128- 51.2017.8.26.0000 - TJ-SP; AREsp 896.041 - STJ - (monocratic decision of Minister Marco Aurélio Bellizze) - decided on 12.5.2016; REsp 1.478.001 - STJ - Rapporteur Minister Raul Araújo; REsp 1.193.115-MT - Rapporteur Minister Sidnei Beneti - (this ruling does not require exercise for two years after registration, it only requires that the registration be prior to the filing of the recovery request).
Having adopted this understanding and admitted judicial reorganization for rural entrepreneurs registered for less than two years, another obstacle arose because it was understood that debts incurred prior to the producer's registration with the Commercial Registry were not subject to reorganization. The basis for this view was the fact that it could not be accepted that the creditor would be surprised by the debtor's new condition, that is: the bank had lent to an individual (who could not request judicial reorganization) and now found itself involved in a reorganization.
However, and always respecting the opposing view, such an argument does not seem to hold up. No one can claim ignorance of the law, and the Civil Code of 2002, in its article 971, created an entirely new situation, that is, it admitted that the rural producer, by simple unilateral expression of will, could become an entrepreneur, "in which case, after registration, he will be equated, for all purposes, to an entrepreneur subject to registration".
Now, a businessperson who is subject to registration as per article 967 can request judicial reorganization and subject all their creditors to the reorganization, which is why a businessperson constituted as per article 971 also has this right. On the other hand, knowing article 971 of the Civil Code, any person or any financial institution knows that a rural producer can become, from one moment to the next and by unilateral expression of will, a businessperson equivalent "for all purposes" to any other businessperson constituted as per article 967. Therefore, there can be no talk of surprise.
Another argument from the group that adopted the objection states that registration with the Commercial Registry is constitutive and not declaratory, an argument that seems, in a way, irrelevant. In any case, the registration is not constitutive, it is declaratory. Imagine if a dentist, working alone in his office, mistakenly registers his EIRELI (Individual Limited Liability Company) with the Commercial Registry; of course, he will not become a businessperson. On the other hand, if a sole trader of fruit registers with the Civil Registry, he does not cease to be a businessperson; he will be an irregular businessperson.
In other words, registration with the Commercial Registry or Civil Registry does not constitute, it only declares. Incidentally, in REsp 1.193.115-MT, Minister Nancy Andrighi, in an obiter dictum, states: "Even though the law requires entrepreneurs, as a rule, to register with the Business Registry, it is worth noting that their legal status is not conferred by registration, but rather by the effective exercise of the professional activity. For this reason, it is understood that the legal nature of this registration is declaratory, and not constitutive."
An examination of the general system adopted in the Civil Code, which rejected the act of commerce and adopted the theory of the enterprise, also leads to the same result; however, a discussion of this issue would take up more space than the limited journalistic space allows.
Manoel Justino Bezerra Filho is a professor at Mackenzie University and the Paulista School of Magistrates, and a legal consultant in the business field.
29/03/2019
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By Manoel Justino Bezerra Filho
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