The extension of the lease for an indefinite term results in the maintenance of bail unless there is contrary manifestation expressed in the contract. During the extension, the guarantor may be exempt from the requirement by notification. This was the view adopted by the Fourth Chamber of the Superior Court of Justice (STJ), to fit the new wording of Article 39 of Law Tenant (Law 8.245/1991).
According to Minister Luis Felipe Solomon, before the enactment of Law 12.112/09 - who promoted the amendment of article cited - the STJ only admitted to bail in the extension of contracts locatícios extended indefinitely as expressly provided in the contract.
Solomon recalled that several precedents in this direction culminated in the issue of the Supreme Court docket 214, which states: "The guarantor is not liable for the lease obligations of an addition to which not consented."
Change in law
The Minister mentioned that in 2006, with the trial of EREsp 566,633, STJ has accepted the extension of the bail contract locatícios as long as expressly provided in the contract.
However, with the new wording of Article 39 of the Tenancy Act - signed to contracts of guarantee from the enactment of Law 12,112 - unless otherwise provided by contract, in case of extension of the lease for an indefinite period, the guarantee (in case, the bail) extends to the effective devolution of property.
Ie "remain the guarantors liable for debts locatícios later to extend legal contract expressly anuíram this possibility and not exonerated in the forms of articles 1500 of the Civil Code of 1916 (CC/16) or 835 CC/2002 of the depend on the date they signed the covenant, "said Solomon.
Execution
The matter was discussed in the trial of a special feature that originated in enforcement action, filed in 2008 against a woman who had signed a contract of guarantee in 1993, effective for one year. There is information in the file that the lease had been extended and that the rent arrears that gave rise to the action began in 1996.
The trial court abolished the execution. On appeal, the state court held that the woman would not have legitimacy in action since the contract which participated as guarantor had given period and that the only extension agreed between the parties could not reach him because he would not have been notified of the change.
The absence of a condition for the action, the court dismissed the case without resolution of the merits. In special appeal, the tenant argued that the judgment should be reformed, because he said there was a clause in the contract that blamed the guarantor until the discharge of all debts.
In this particular case, the minister Luis Felipe Solomon, rapporteur of the appeal, applied the old law because the STJ guarantee contract predates the enactment of Law 12,112. He explained that the extension of bail could only occur if there were explicit about pact.
In interpreting contractual terms, the state court concluded that it was agreed to maintain the warranty if extended indefinitely. To change this decision is necessary to reinterpret the contract, which is forbidden by the Supreme Court Precedent 5. Therefore, the Fourth Class dismissed special.