STJ decides that in the assignment of credit rights, the credit maintains its original nature
The Superior Court of Justice (STJ), when judging Special Appeal 1.984.424/SP, handed down an important decision on the possibility of altering the nature of the credit after its assignment. In a case of execution of an extrajudicial title involving a Bank Credit Note, the court determined that the assignment of the credit does not change its original nature. This means that even when the credit is assigned to a third party that is not part of the National Financial System, this third party is entitled to collect the previously agreed charges, without the limitation imposed by the Usury Law.
The special appeal was filed by Banco BTG Pactual S.A., incorporator of Novaportfolio Participações S.A., against a decision of the Court of Justice of the State of São Paulo. The case involved the collection of charges higher than those provided for in the Usury Law after the assignment of the credit. The court of origin understood that the assignment of the credit, made by means of civil cession, did not equate to endorsement in black, a requirement for the transfer of a Bank Credit Note.
However, the STJ decided that the transmission of the credit by means of civil assignment does not remove the assignee's right to collect interest and other charges as originally agreed. The court based its decision on articles 286 and 287 of the Civil Code, which state that every credit can be assigned, provided that there is no impediment in the nature of the obligation, in law or in the agreement with the debtor. Furthermore, unless otherwise provided, in the assignment of credit all its accessories are covered.
The decision clarifies that the assignment of the credit does not alter its original nature. This means that the assignee, even if it is not a financial institution, may charge the charges as agreed upon in the Bank Credit Bill, without the application of the limitations imposed by the Usury Law, thus bringing more legal security to the parties involved in credit assignment operations and strengthening the transfer of credits as a business instrument in the market.
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