The nature of out-of-court restructuring in Brazilian law

Extrajudicial restructuring has become established in the Brazilian legal system as a faster and less costly mechanism for the recovery of companies in economic and financial crisis. Unlike judicial reorganization, which attracts all creditors subject to its effects, the extrajudicial modality has an eminently contractual and negotiated nature. In this context, the Superior Court of Justice (STJ) has established relevant jurisprudence on the limits of novation in this procedure, a central theme of the recent judgment of Special Appeal No. 2,234,939/RJ, reported by Minister Humberto Martins and judged by the Third Panel on March 3, 2026.

The case analyzed by the Superior Court of Justice and the controversy surrounding novation.

The specific case that prompted the Superior Court's ruling involved a mining and fertilizer company seeking to suspend the enforcement of an extrajudicial debt instrument brought by an engineering firm for services rendered. The debtor's defense was based on the premise that the debt being enforced should be subject to the effects of the extrajudicial reorganization plan previously negotiated and judicially approved, even if it was not expressly listed in said instrument. The controversy, therefore, lay in the extent to which the effects of the novation effected by the approval of the plan extended to non-adherent or non-included creditors.

Limits of novation in out-of-court restructuring

Upon analyzing the matter, the Superior Court of Justice (STJ) reaffirmed its understanding that, in extrajudicial reorganization, the approval of the recovery plan does not novate credits that were not included in the reorganization proposal. The decision is based on the interpretation of article 163, paragraph 2, of Law No. 11.101/2005, which clearly establishes that the request for homologation of the plan does not suspend rights, actions, or executions held by creditors not subject to it. This is a fundamental distinction in relation to the judicial reorganization regime, where novation affects all credits prior to the request, regardless of qualification.

Superior Court of Justice's understanding regarding creditors not included in the plan.

The court's reasoning highlighted that the plan presented and judicially approved is subject to the specific legislative discipline of extrajudicial recovery, producing effects restricted and binding only to the credits expressly contemplated therein. Therefore, given the factual finding that the debt being enforced had not been included in the plan, the terms of the agreement, including the claim for recognition of novation and the consequent termination of the enforcement proceedings, could not be imposed on the holder of the right who was not a participant in the negotiation.

Legal certainty and precedents from the Superior Court of Justice (STJ)

To corroborate this argument, the Reporting Justice invoked a recent and paradigmatic precedent from the Third Panel itself, REsp No. 2,197,328/SE, reported by Justice Moura Ribeiro, judged in 2025. This jurisprudential alignment demonstrates the consolidation of the understanding that extrajudicial reorganization cannot serve as a universal protective shield against all creditors, but rather as a renegotiation instrument restricted to those who effectively comprise the scope of the approved plan. The intangibility of unlisted credits is, therefore, a guarantee of legal certainty for economic agents.

Practical impacts for companies undergoing restructuring.

The practical implications of this decision are extremely relevant for structuring debt restructuring processes. For the debtor company, it highlights the imperative need for an exhaustive and precise mapping of all its debt before proposing the plan. The omission of credits, whether due to internal control failures or a deliberate strategy, leaves the company exposed to individual executions that can result in acts of asset seizure, such as garnishments and account freezes, severely compromising the viability of the intended recovery itself.

Protection of creditors and right of execution

On the other hand, for creditors, the ruling ensures that their right to credit and the respective guarantees remain intact if they are not formally included in the restructuring. The absence of automatic novation means that the debt continues to exist with its original due dates, charges, and conditions, legitimizing the continuation of ongoing collection actions and executions. This protection prevents creditors from being surprised and harmed by private agreements in which they did not participate and to which they did not agree.

Conclusion: Strategic limits of out-of-court restructuring

In short, the Superior Court of Justice's (STJ) ruling in REsp 2.234.939/RJ reinforces the delimited and contractual nature of extrajudicial reorganization, upholding the autonomy of will and legal certainty. The decision makes it clear that the benefits of novation and the suspension of executions are exclusive counterparts to transparent negotiation and the formal inclusion of creditors in the reorganization plan. By rejecting the automatic extension of these effects to credits not contemplated, the Superior Court establishes clear guidelines for the proper use of this important institute of Brazilian business law.

Article written by: Vitor Ferrari and Samar Majzoub.