In the judgment of Repetitive Theme 1,203, the 1st Section of the Superior Court of Justice (STJ) reaffirmed its position that insurance guarantee or surety letter suspend the liabilities of non-tax credits. The following thesis was established:

  • "The offer of insurance guarantee or surety letter, provided that corresponds to the updated value of the debt, plus 30% (thirty percent), has the effect of to stop payment check the liabilities of the non-tax credit, the creditor may only reject it upon demonstrating insufficiency, a formal defect, or the unsuitability of the guarantee provided."

 

The decision was expected because it reflects the jurisprudence of both Public Law Panels – which make up the 1st Section – that, in the case of non-tax credits, the guarantees must comply with the rules provided for in article 835 of the Code of Civil Procedure (CPC). In this case, the restrictive construction of article 151 of the National Tax Code (CTN) made by the STJ that only the cash deposit suspends the liabilities of the tax credit is not applicable.

The pleasant surprise in the judgment of Repetitive Theme 1,203 is because the 1st Section overcame the understanding, by on inflow consolidated in the Public Law Panels,[1] that the surety letter with an expiration date was not suitable for the purposes of guaranteeing the courts. In line with the position of the Private Law Panels –[2] which are part of the 2nd Section – the 1st Section decided that:  

  • the suitability of the guarantee must be assessed based on the conformity of its clauses with the rules issued by the competent authorities, and the simple stipulation of a specific validity period, by itself, cannot give rise to its unsuitability; and
  • Guarantees with a fixed term and without an automatic renewal clause or other provision that ensures the maintenance of the coverage are suitable, provided that the debtor presents a new guarantee sufficient at least 60 days in advance of maturity.

The justification adopted by the Public Law Panels was that, if there is an expiration date and there is no way to predict by when the process will last, this type of guarantee would not be effective to ensure compliance with the obligation to which it is bound. Such an understanding was the object of criticism, among other factors, for not to entertain to hold in mind that:

  • article 760 of the Civil Code establishes as a requirement for the validity of the policy the suggestion of the term of validity;
  • The policies now provide for an automatic compulsory renewal clause of their validity, with wording that ensures their effectiveness as long as the covered risk exists, including a provision that the insured's failure to pay the premium corresponding to the renewal of the policy constitutes a claim, which generates for the insurer the obligation to accomplish the deposit of the covered amount in courts;
  • the Superintendence of Private Insurance (Susep), the body responsible for the supervision and regulation of the Brazilian insurance market, leaves no doubt about the compulsory and automatic renewal of judicial surety bond policies, which ensures the maintenance of coverage as long as the guaranteed risk remains, as provided for in Susep Circular 477/13 and Susep Circular 622/22;
  • the Attorney General's Office of National Treasury but Minister of Finance (PGFN) itself accepts, as a guarantee, the offer of fixed-term judicial surety bond insurance policies – acknowledged and agreed jointly with PGFN Ordinance 164/14, later revoked by PGFN Ordinance 2,044/24, which extended the minimum term of validity of the policy from two years to five years, in order to comply with the rules imposed by Susep and Law 14,689/23.

Thus, the decision adopted in Repetitive Theme 1,203 not only standardizes the STJ's understanding on the matter, but is also consistent jointly with laws and regulations applicable and the regulatory landscape, generating higher predictability and legal certainty for the jurisdictional parties and for the insurance market.

Another point that deserves to be highlighted and can settle old discussions is that the 1st Section established the limits for the rejection of the guarantee offered by the creditor – insufficiency, formal defect or unsuitability of the guarantee – whose expression must be substantiated and has an opinionated and non-binding character, since it is up to the judge to come to a decision regarding the validity of the guarantee.

It also established that the provision of the need for this consent is in compliance with the adversarial process and does not mean that it can be arbitrary or discretionary. In addition, acknowledged and agreed jointly with the 1st Section, the definition of criteria through internal ordinances guide the Public Administration itself. Compliance with these criteria may imply automatic acceptance of the guarantee, but they do not bind the confidence of the judge.

This understanding is relevant because, as well explained by Minister Paulo Sérgio Domingues in his vote, accepted by the reporter, "in practice, many judges reject the acceptance of these guarantees or, even, the replacement of the attachment requested by the debtor, as provided for in article 15, II, of Law 6,830/1980, based on the disagreement of the Treasury", Federal Government or another public entity.

Thus, in line jointly with evolution legislative and regulatory rules, the STJ reaffirms its understanding that surety bonds and bank guarantee are suitable modalities of guarantee of debt – tax vel non. If the regularity of the policy is verified, therefore, there is no impediment to its acceptance as a formats of guarantee from the courts.

In the case of non-tax credits, the suspension of liabilities in the event of an insurance or guarantee is also recognized, provided that 30% of the required amount is added.

This approach upholds the principles of minimizing the burden on the debtor—who will not have to allocate funds that could compromise their cash flow—and maximizing the effectiveness of enforcement for the creditor, since these guarantees produce the same legal effects as a cash deposit, ensuring both security and liquidity

As it is a decision taken under the rite of repetitive appeals, the courts must observe this understanding in analogous situations, which evidences the sum of the decision taken by the STJ in Repetitive Theme 1,203, providing higher predictability and legal certainty to the jurisdictions that decide to offer insurance or guarantee as collateral.

[1](AgInt in REsp 2.021.938/RS, reporter minister Francisco Falcão, 2nd Panel, DJe of 11/11/2022); and (AgInt in EDcl in AREsp 1.017.788/RJ, reporter minister Gurgel de Faria, 1st Panel, DJe of 10/20/2020)

[2](REsp 1.838.837/SP, rapporteur Minister Nancy Andrighi, reporter for the judgment of Minister Ricardo Villas Bôas Cueva, 3rd Panel, DJe of 5/21/2020); (TutCautAnt 672/SP, reporter minister Raul Araújo, 4th Panel, DJe of 9/30/2024); (REsp 1.691.748/PR, reporter minister Ricardo Villas Bôas Cueva, 3rd Panel, DJe of 11/17/2017) and (REsp 2.025.363/GO, reporter minister Ricardo Villas Bôas Cueva, 3rd Panel, DJe of 10/10/2022)