Insegurança jurídica e spread bancário

Por Valor Econômico

De forma simplista, o spread bancário se trata da diferença percentual entre os juros que o banco cobra ao realizar um empréstimo e a taxa que a própria instituição financeira paga ao captar o dinheiro. Segundo Nota para Imprensa divulgada pelo Banco Central no mês de agosto de 2017, o spread médio das contratações com recursos livres e direcionados situou-se em 21,5 pontos percentuais, o que mantém o país como um dos detentores das mais altas taxas do mundo.

A decomposição do spread, como indicado pelo próprio Banco Central, tem na inadimplência um de seus principais fatores, com representação de quase 30% da taxa. Por esta razão, em fevereiro de 2017, foi anunciada mais uma agenda em prol da diminuição do spread, com foco, dentre outros, no pilar das garantias às operações bancárias.

Dentre as principais garantias de tais operações está a cessão fiduciária de recebíveis, a qual tem sido alvo de celeumas e questionamentos desde a aprovação da legislação falimentar vigente, Lei nº 11.101/2005 (LFRE).

Casos como o da cessão fiduciária são especialmente emblemáticos no que tange à insegurança jurídica

Reiteradamente, sob o estandarte da preservação da empresa a todo custo, se enfileiram juristas que defendem, a partir de interpretações questionáveis do artigo 49, §3º da LFRE, que o legislador não pretendeu incluir a cessão fiduciária dentre os créditos não submetidos à recuperação judicial. Esse entendimento tem ganhado força nos tribunais.

Contudo, a clareza da lei, já avalizada pelo Superior Tribunal de Justiça (STJ), em especial no Recurso Especial nº 1.263.500- ES, torna irrefutável o fato de que o legislador não submeteu o credor titular da posição de proprietário fiduciário de bens móveis, incluindo direitos creditórios, ao procedimento recuperacional.

Sob o prisma econômico, a análise não deveria se restringir apenas à discussão a respeito do caso específico da garantia da cessão fiduciária. O problema, na realidade, está nas aceitações reiteradas da jurisprudência de teses contrárias à lei, contribuindo para que o cenário de insegurança jurídica seja uma constante no país. Isto, como se sabe, retrai a oferta de crédito e aumenta o spread, haja vista que as instituições financeiras se verão obrigadas a aumentar seus custos administrativos, a realizar uma avaliação de risco mais severa e, consequentemente, a aumentar sua remuneração em cada operação, dado que a certeza de recebimento estará comprometida.

Casos como o da cessão fiduciária são especialmente emblemáticos no que tange à insegurança jurídica, visto que não há argumento plausível apto a ilidir o que a previsão legal do artigo 49 determina. A própria justificativa da preservação da empresa deve ser medida de forma mais adequada, visto que a recuperação judicial, nos termos do que prevê a LRFE, visa à superação da crise econômico-financeira, com a manutenção da fonte produtora, do emprego dos trabalhadores e dos interesses dos credores, para preservar a empresa como agente da atividade econômica e não para preservar a figura do empresário e sua posição na empresa em crise.

O crédito com uma garantia que vise mitigar o risco de não pagamento pelo devedor é, em regra, mais barato que um crédito sem garantias. Se o banco não pode contar com a garantia tal como foi contratada ou com os efeitos estabelecidos em lei, ela não servirá para mitigar o risco do devedor e, consequentemente, o crédito tenderá a ser cada vez mais escasso e caro.

A insegurança jurídica acarretada por decisões como as que atingem a cessão fiduciária acaba, assim, por socializar a consequência do aumento do spread bancário, já que esse custo é, invariavelmente, repassado a todas as empresas que buscam crédito no mercado financeiro.

Nessa curta análise, vale dizer, não se pretende esgotar o assunto e tampouco ignorar a realidade das dificuldades que as sociedades em recuperação judicial enfrentam no país. Contudo, em um sistema civilista não há espaço para a relativização de previsões legais em interpretações dadas ao sabor de um juízo de conveniência. Caso entenda-se que a lei é inadequada, o caminho deve ser a discussão e a reforma. Do contrário, o sistema financeiro nacional e, por consequência, a atividade empresarial, permanecerão dividindo a histórica conta da insegurança jurídica.

Erik Oioli e José Afonso Leirião Filho são advogados do Vaz, Barreto, Shingaki & Oioli Advogados

 

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