Limites do contrato de factoring: uma análise sobre as responsabilidades dos contratantes e de terceiros em relação ao crédito e os riscos do negócio jurídico à luz do entendimento do STJ

Abstract

The limits of the factoring contract are established predominantly by STJ case law, in view of the absence of specific legislation. Based on this fact, this study aims to demonstrate the current understanding of the STJ on the possibility of holding the factored party liable for the insolvency of the debtor in factoring contracts, on the possibility of the factoring company filing a recourse action against the factored party in this type of contract and on the possibility of establishing a contractual clause requiring the factored party or third parties to guarantee the solvency of the credit. The methodology used is exploratory research, since its purpose is to broaden knowledge about the limits of factoring in Brazil, while the procedure used is indirect documentation, using doctrinal books, published scientific articles and decisions of the STJ. Furthermore, the method used is hypothetical-deductive, starting from the premise that it is not possible to hold the factored company responsible for insolvency and that guarantees are not allowed in factoring. Thus, the main results highlighted were the impossibility of transferring to the factoring company the responsibility for the debtor's insolvency, since this risk is essential to the factoring activity, however, the factoring company is still responsible for the existence of the credit itself. This is directly consistent with the impossibility of regressive action based on the debtor's insolvency, but makes it possible if the default results from the factored party's fault. Finally, guarantee clauses, such as too securities issued to guarantee the credit agreement in factoring, are null and void. Thus, the understanding has been consolidated.