A coobrigação nas operações de Fidc

Por Valor Econômico

As transmissões de recebíveis a fundos de investimento em direitos creditórios (Fidc) são disciplinadas em contratos de cessão que, geralmente, preveem a coobrigação do cedente e de terceiros pelo pagamento do crédito cedido.

É uma forma de retenção dos riscos de crédito do ativo adquirido pelo fundo assumida por esses coobrigados. O cedente, independentemente de previsão contratual, ao transmitir um crédito assume originalmente a responsabilidade legal pela existência do crédito cedido. O artigo 295 do Código Civil é claro a esse respeito. Se a validade e exigibilidade de um crédito depender do cumprimento da relação subjacente entre o cedente e o devedor originário do título, como ocorre por exemplo na venda de produtos com entrega futura, qualquer vício ou defeito relacionado ao negócio que deu origem ao crédito poderá gerar ao cedente a responsabilidade legal de recomprar o ativo cedido ou de indenizar o fundo cessionário.

Agora vamos imaginar a situação em que o negócio que deu origem ao crédito foi cumprido pelo cedente. O produto foi adequadamente entregue, seguindo o exemplo anterior. Nessa hipótese o crédito será considerado performado – cujo termo é geralmente utilizado para qualificar um recebível válido e exigível – e o Fidc adquirente desse ativo poderá regularmente cobrar o devedor.

Investidores, gestores aguardam a formação de uma jurisprudência para consolidar a validade da coobrigação nas cessões com Fidc

Protestar, negativar, cobrar judicialmente, enfim, são atos legalmente ao alcance do cessionário para exigir o pagamento do crédito adquirido. Poderá o Fidc, além de cobrar o devedor originário, exigir também o pagamento do crédito performado perante a própria cedente e os demais responsáveis solidários que assumiram essa posição de coobrigado no contrato de cessão.

Essa coobrigação encontra-se expressamente prevista em diversas leis e normas. Está no Código Civil, tanto nos artigos 264 e 265, que tratam das obrigações solidárias, quanto no artigo 296, que dispõe sobre a cessão ordinária de créditos. O artigo 21 da lei do cheque também é claro a respeito da coobrigação do endossante, assim como o artigo 15 da Lei Uniforme de Genebra, que impõe a corresponsabilidade de pagamento do título, salvo cláusula em contrário, a endossantes de duplicatas, notas promissórias e cédulas de crédito bancário.

E mais. A própria Instrução CVM 356, de 17 de dezembro de 2001, que regulamenta a constituição e funcionamento de Fidc, prevê expressamente a figura do coobrigado cedente ou terceiro, conforme definição no artigo 2º, inciso XV.

Os investidores de FIDC, em especial quando as operações não estão garantidas por alienação fiduciária de bens móveis e imóveis, contam com a coobrigação do cedente e de terceiros para reduzir o risco de inadimplência dos direitos creditórios integrantes da carteira do fundo.

Não raramente, entretanto, surgem decisões judiciais para afastar a coobrigação nos contratos de cessão. A motivação seria a mera semelhança das cessões a Fidc com negócios de fomento comercial ou factoring. A jurisprudência tem aplicado o polêmico entendimento de que as empresas de fomento comercial assumem o risco de inadimplência dos devedores dos créditos cedidos.

A ausência de regulamentação específica e a semelhança com o desconto bancário têm sido os fatores preponderantes para a formação desse entendimento em relação às atividades de factoring. Diverso, no entanto, é o regime jurídico aplicado à cessão de crédito envolvendo Fidc.

A estrutura de um fundo representa uma comunhão de recursos em forma de condomínio de investidores, qualificados ou profissionais, administrada por uma instituição financeira e controlada pela Comissão de Valores Mobiliários. É um mercado de securitização de recebíveis de estrutura rígida, controlada, com regulamentação própria (ICVM 356) autorizada pela Resolução n° 2907 do Conselho Monetário Nacional e, para afastar qualquer semelhança com outras atividades, com a previsão expressa da coobrigação. Já existem diversos precedentes judiciais que validam a coobrigação. O Superior Tribunal de Justiça, por exemplo, reconheceu em 2016 a licitude da cláusula contratual que atribui ao cedente a responsabilidade por eventual inadimplemento do título cedido (Agravo em Recurso Especial nº 978.642).

Mais recentemente, dois julgados do judiciário paulista, seguindo uma tendência do TJ-SP, basearam-se justamente na regulamentação própria dos fundos de recebíveis e nas demais distinções com a atividade de factoring para reconhecer a validade da coobrigação em cessões envolvendo fundos. (Processos 1000925- 19.2018.8.26.0011 e 1035461-17.2017.8.26.0100).

Informações do setor dão conta de que o mercado de Fidc encerrou 2017 com um patrimônio líquido próximo a R$ 80 bilhões. A coobrigação, repita-se, é uma importante ferramenta para a manutenção desses expressivos números. Investidores, administradores, gestores, além dos próprios cedentes, interessados na redução das taxas de cessão, aguardam a formação de uma jurisprudência para consolidar a plena validade da coobrigação nas cessões envolvendo Fidc.

Marcelo Augusto de Barros é advogado, sócio do escritório Teixeira Fortes Advogados Associados

Este artigo reflete as opiniões do autor, e não do jornal Valor Econômico. O jornal não se responsabiliza e nem pode ser responsabilizado pelas informações acima ou por prejuízos de qualquer natureza em decorrência do uso dessas informações

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