In the conflict of jurisdiction action, the partners also requested the suspension of the execution, claiming that the recovery plan presented would include the payment of the debt that was being collected against the guarantors.
In his vote, the rapporteur of the case, Minister Marco Buzzi, on this point, ordered the continuation of the execution, in parallel with the judicial recovery process, highlighting that the execution process was not filed against the manufacturer of animal feed supplements, but rather against the company's partners, identified as guarantors and, consequently, guarantors of the debt.
The Minister emphasized that the Court's understanding provides that creditors of the debtor in judicial recovery have preserved their rights and privileges against co-obligors, guarantors and recourse obligors, exactly as provided for in article 49, § 1º of Law 11.101/2005. However, in the case in question, which concerns a company in judicial recovery proceedings, the judge understood that these rights and privileges are limited, with the company's partners being liable only in relation to the value of the fully paid-up shares.
In his opinion, Justice Marco Buzzi warns that "unlike general partnerships, where joint and several liability is inherent to their constitution, in a limited liability company, partners can limit losses, as they are liable only for the share capital, once fully paid." He further emphasized that "the guarantor is responsible for an autonomous and independent obligation, enforceable even if the obligation is null, false, or non-existent. Therefore, the granting of the request for judicial reorganization does not prevent the continuation of any execution filed against their respective guarantors, given the autonomous nature of the exchange guarantee offered."
