By: Vitor Ferrari and Ivan Kubala

In the judgment of Special Appeal No. 1,972,038 – RS, the 3rd Panel of Ministers of the Superior Court of Justice understood that the debts belonging to the company Oi Internet, incorporated by the company Oi Móvel, must be subject to the incorporator's judicial recovery plan.

The judges' understanding was unanimous that the debts of an incorporated company are subject to the judicial recovery of the incorporating company and, consequently, to the universal court, even if the debts predate the date of the incorporation. Regarding this understanding, the rapporteur, Justice Nancy Andrighi, concluded that “the universal court must exercise control over the restrictive acts on the assets of the group under judicial recovery”.
What underpins this understanding is the principle of Brazilian law that requires that accessory assets, in this case, debts, follow the main assets, the incorporated company.

Thus, according to the understanding, when purchasing a company, the developer also acquires its debts and responsibilities towards creditors. These debts become part of the liabilities of the Developer.
The Creditor, therefore, must choose to continue the Execution against the original debtor, and after that, respect the understandings and determinations of the Recovery Court, given the control over the assets and protection of the assets of the Recovering Companies.

Therefore, if the company undergoes a judicial or extrajudicial recovery process, such debts must also be subject to the procedure of law 11.101/05, regardless of whether they date from before the incorporation.

With the collaboration of Luis Felipe Simões