Post by account_disabled on Mar 13, 2024 3:30:50 GMT -5
Only with due material proof of the form of composition of the calculation will the debtor be able to say whether or not she recognizes the debt due, a fact that requires the management of a collection action to satisfy the pursued credit.
Based on this understanding, the 25th Chamber of Private Law of the Court of Justice of São Paulo extinguished a collection action filed by a shopping mall administrator against a retailer due to there being no demonstration of how the credit was composed. The administrator requested payment of outstanding rent, rental charges and promotion fund, totaling R$100,000.
The court accepted the storeowner's arguments B2B Lead that the title that prepares the execution (documentally proven credit resulting from CPC rent, article 784, item VIII) is uncertain, illiquid and unenforceable, because it would be contaminated with charges for variable items not accompanied by the documents of support.
“It is true that he launched several “charges” during the execution, with significant values, without even explaining the composition of the values or presenting the basic documents that would allow them to be charged”, said the rapporteur, judge Marcondes D'Angelo.
He said it was not possible for the rental company to use the executive route just on the grounds that it has documented credit resulting from rent. “This is because, in the way the calculations were presented, part of the obligation is uncertain, as it is not possible to immediately assess whether the embargoed party carried out the promotion campaigns under its responsibility to charge for the fund promotion, or even have apportioned the amounts owed among all condominium owners in accordance with the exact terms of the contract.”
According to the rapporteur, it is not even possible to verify the liquidity of the obligation, “because it is not possible to determine from the credit memorandum attached to the file that the embargoed person attributed to the embargoee all that, and only that, that was applicable to her under the terms of the contract” . D'Angelo stated that, although the credit arises from a rental relationship, he is not able to issue an extrajudicial executive title due to the multiple facets of its composition, which must be clarified with supporting documents for them to become enforceable.
“Finally, considering that “the execution for the collection of credit will always be based on the title of a certain, liquid and demandable obligation”, and that, in this case, there is no certainty of the obligation, which is still illiquid and not even demandable , it is a case of maintaining the respectable sentence under attack regarding the acceptance of the embargoes on execution”, concluded the judge, denying the mall administrator’s appeal. The decision was made unanimously.