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Date: February 21, 2019
Posted by: CPDMA Team

Companies in recovery can enter into factoring contracts, decides Third Class

Regardless of authorization from the competent court, companies undergoing judicial reorganization may enter into factoring contracts during the course of the rebuilding process.

Based on this understanding, the Third Panel of the Superior Court of Justice (STJ) granted the appeal of three companies undergoing reorganization to amend the decision of the Court of Justice of São Paulo and remove the restriction imposed on them in relation to the execution of contracts of commercial development.

The rapporteur, Minister Nancy Andrighi, explained that the social affairs of companies undergoing judicial reorganization remain managed by them during the uplift process, unless any of the legally foreseen causes of removal or dismissal are verified.

According to the minister, article 66 of the Law on Bankruptcy and Corporate Recovery (Law 11,101/2005) imposes certain restrictions on the debtor regarding the practice of acts of disposal or encumbrance of assets or rights of its permanent assets, after the recovery request.

credit rights

Nancy Andrighi pointed out that the assets sold as a result of factoring contracts (credit rights) do not form part of any of the subgroups that make up the company's permanent assets, as they cannot be classified in the categories of investments, fixed assets or deferred assets.

“Thus, whether the receivables (depending on their maturity) are classified as current assets or as long-term assets, the fact is that, as such items cannot be classified in the permanent asset category, the restriction on entering into credit agreements factoring by a company undergoing judicial reorganization is not covered by the normative command of article 66 of the LFRE”, he pointed out.

For the rapporteur, commercial development contracts, insofar as they provide significant reinforcement in obtaining working capital (assisting as a liquidity factor), can serve as an important ally for companies that seek to overcome the situation of economic and financial crisis.

Source: Superior Court of Justice.

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