Coronavirus: from the application of judicial recovery to non-entrepreneurs
The COVID-19 pandemic has had dire consequences for Brazilian economic life. The business routine has been strongly impacted by the issue, generating a chain reaction to contaminate public revenue and private life.
Brazilian legislation created solutions to deal with business difficulties. We can highlight that when the entrepreneur's capacity to honor his debt is exasperated, some solutions are plausible, each one applied in its opportune moment: judicial or extrajudicial recovery and bankruptcy.
Those who are not entrepreneurs, whether natural or legal persons (associations, foundations, and cooperatives, for example), are not equipped with the same tools, whose use, however, may prove to be opportune in times of acute crisis, such as the one we are experiencing, or those that follow them.
Furthermore, the supposition for the recovery to occur is the installation of a crisis, which can be both economic, that is to say, “the considerable retraction in developed businesses” (COELHO, 2008, p. 231), as well as financial, as understood as "The constant inability of the company to face its own debts, with the financial resources at its disposal" (GARELLA, 2003, p. 19). This is a liquidity crisis (COELHO, 2008, p. 231), which makes it impossible to pay day-to-day commitments. This crisis is already more worrying, as the company in the financial crisis has difficulty maintaining contracts with suppliers and with the credit system, reaching third parties that surround the activity.
Due to the harmful effects that crises can generate, there is a tendency to seek solutions to them. Such solutions, in principle, should result from the market itself, that is, without state intervention. However, when this is not possible, the intervention of the public authorities is resorted to, even through judicial reorganization procedures.
Crises, however, can also affect, and strongly, those who are not entrepreneurs. There are traditional remedies that can mitigate its harmful effects, among which, the review looking for contractual rebalancing, due to the incidence of articles 317, 478 and 480 of the Civil Code and article 6, V of the Brazilian Consumer Law Code, operating in extrajudicial channels or in court.
It happens that, as the crisis worsens, the mismatch between the ability to perform and the maturity of obligations is installed, leading the debtor to a situation that, if not reordered, could lead to effective insolvency (understood as the situation in which “debts exceed the importance of the debtor's assets”, according to article 780 of CPC/73 (the previews Brazilian Code of Civil Procedure), in this respect, maintained by CPC/15(the current Brazilian Code of Civil Procedure), worsening the “domino effect” of contractual non-compliances, to expand on a geometric scale like the COVID-19 itself, contaminating the solvency capacity of millions of people.
The primary objective of judicial recovery is, therefore, the maintenance of business activity and, in the solution to be explored below, of its analog extension to non-entrepreneurs, it would be the maintenance of the circulation of wealth, to avoid the economic collapse, because of nothing it would advance the maintenance of business activity if the ability to perform non-businessmen is not maintained.
We have, therefore, that the judicial recovery was not designed for non-entrepreneurs, among which, the vast majority of individuals, associations, foundations, and cooperatives, just to name a few examples. However, nothing prevents us from imagining the application of such an institute to them by analogy.
The use of the analogy occurs in two stages (SCHAPP, 2006, p. 249): a) the analysis that indicates that the gap represents a deficiency without the intention of the law and b) the similarity of factual supports between the regulated and the lacunas hypothesis.
Therefore, the gap represents an unintended deficiency of the law. What is sought here is to demonstrate that the systematic interpretation of the order may indicate that the void on a given theme indicates a deliberate intention of the law to provide legal protection to a certain situation and not to others.
It can be said, concerning the case analyzed, that the silence of the law regarding the application of judicial recovery to non-entrepreneurs, in normal times, was not a lapsus calami of the law, but a deliberate option of the legislator in applying the institute only for entrepreneurs. It is as if we asked: would the legislator have imagined that such a severe crisis would collapse on everyone by the pandemic of the COVID-19? It seems correct to understand that it is not. And more... the law would be aware of the fact that an unprecedented number of "non-entrepreneurs" would be simultaneously without liquidity to honor their debts, creating an imbalance that, if not stopped, could lead to the worsening of the crisis in the productive sector? We also understand that not!
Therefore, only at the moment we live, it seems reasonable to understand that we are facing an unintended deficiency of the law, that is, the mechanisms of overcoming the crisis, for “non-entrepreneurs”, are atomized and uncoordinated.
There would be a gain in rationality for the system, if a solution were applied that would allow, in a coordinated way, the non-entrepreneur debtor could reorganize his debts with all creditors that, on the other hand, even though in conditions not originally foreseen, still would have the prospect of settling debts.
Furthermore, the ancient Roman brocade would also be applicable here, according to which, ubi eadem ratio ibi idem jus (where there is the same foundation, the same right will apply). Thus, the judicial recovery commands should be applied to the unregulated case, due to the analogical impact of the laws that deal with judicial recovery.
* Marlon Tomazette, Master and Ph.D. in Law at the Centro Universitário de Brasília (UniCEUB). Professor of business law at UniCEUB, at the Superior School of the Ministério Público of the Federal District and Territories, at FGV-Rio and at IDP, attorney at the Federal District, partner at Tomazette, Franca & Cobucci - Advogados Associados.
* Rogério Andrade Cavalcanti Araujo, professor of Civil Law at the Centro Universitário de Brasília (UniCEUB), consultant lawyer in the civil area of Ferraresi Cavalcante - Advogados, attorney at the Federal District, a former professor at the Higher School