Judicial recovery should provide legal certainty for agribusiness

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Although Law 11,101/05 presents clear and express provisions regarding the rules that guide judicial recovery procedures, what has been observed in the more than 13 years since its entry into force is that many flexibilities have been allowed, even if contrary to the text. expressly stated in the law, to make it possible to overcome the debtor's economic crisis.


In this scenario, another new attempt to circumvent an absolutely clear provision has begun to appear more frequently in the scenario of judicial recoveries, namely, the rural producer's search for legal approval without fulfilling the requirements of article 1 and the “caput” of article 48 of the Law, which limit the application of the recovery diploma to the entrepreneur or business company that has carried out its activities regularly for more than two years before the request.

For contextualization purposes, it is only B2B Lead worth remembering that many rural producers seek to take advantage of judicial recovery without, however, holding a position equivalent to that of a businessman required by Law 11.101/05 or, at least, without holding it for the legal period of more than two years.

Remember that such equivalence does not originate from the mere exercise of rural activity in an organized manner for the production or circulation of goods, but from the registration of producers in the Public Registry of Commercial Companies (registration with the Commercial Board), as expressly provided in the article 971 of the Civil Code.

This article does not intend to deepen the foundations and theses on which the need to impose brakes on the acceptance of flexibility or contours to such devices is believed to be based, which has already been done in numerous recent studies on the subject - but rather demonstrate how Brazilian jurisprudence has been reacting on the subject, as well as what developments are occurring for rural producers who have always acted as individuals and are now beginning to adopt the required formalities with the exclusive scope of requesting judicial recovery.



Despite the few dissenting voices and some isolated judgments, it is already clear that most of the country's courts have put the brakes on flexibility and established two basic pillars on the issue of rural producers, for the application and interpretation of the requirements established by the Law 11.101/05, namely: i) the rural producer has the right to carry out his activities without registering in the Public Registry of Commercial Companies, but if he does so he falls within the concept of irregular entrepreneur within the meaning of the concept of the “caput”, of art. 48, of Law 11,101/05 and ii) registration in the Public Registry of Commercial Companies has a constitutive character, with the period of 2 (two) years provided for in the aforementioned art starting from said act. 48. [1]