Attachment of credit against public agencies.

The possibility of attachment of notes of commitment, allowing the lender to have their credit satisfied.

In view of the economic situation that the country is experiencing, the prospects of receiving and collecting due credits are increasingly being analyzed and discussed in the market and in law firms.

This is because many companies find themselves hostage to their debtors who, in cases of bad faith, are also in a difficult situation in the face of economic chaos.

For the companies that hire and provide for the Public Administration, we see an effective alternative, that is, the execution and attachment of credits resulting from a note of commitment.

For the sake of clarity of the topic, firstly, it should be said that the note of commitment is a title issued by the Public Administration, when it undertakes to pay a loan due to the contractual relationship between the State and its suppliers and / or service providers.

Law 4.320 / 64, which deals with the general rules of financial law, provides in chapter III – Expense, the concept of a note of commitment as well as the characteristics inherent thereto. According to the aforementioned legislation, the “commitment of expenditure is the act emanating from a competent authority that creates for the State an obligation of payment pending or not of implementation of condition” and further, it states that “for each commitment will be extracted a document called” a statement of commitment “indicating the name of the creditor, the representation and the amount of the expenditure as well as the deduction from the balance of the own funds”.

According to the legislation, the commitment of credit owed by the State must be of a previously reserved value since the Federal Constitution prohibits, through its article 167, II, the “realization of expenses or assumption of direct obligations that exceed the budget credits or additional “.

In this line, in view of the requirements required for the issuance of the memorandum of commitment, it is characterized as an extrajudicial executive title, since it has liquidity and certainty requirements (article 783 of the CPC), since the note must indicate creditor, representation and the importance of the expense (article 61 of Law 4320/64), as well as, the value must have been previously considered in the budget forecast.

The Code of Civil Procedure, endorses the understanding, since, in its article 784, II includes, in the list of extrajudicial executives, the “deed or other public document signed by the debtor;”

The Superior Court of Justice places itself in the same direction, according to the position already expressed by the Classes, in judgment, as in the position of the Second Class that expressed: “the note of commitment issued by a public agent is an extrajudicial executive title because it is endowed with liquidity , certainty and enforceability. It reveals a payment obligation assumed by the public entity, so it is liable to be enforceable through the executive branch. “(REsp 894.726 / RJ, Rel. Minister CASTRO MEIRA, SEGUNDA TURMA, judged on 10/20/2009, DJe 10/29/2009 ).

The first Panel of the STJ Colgando stated that: “the note of commitment issued by a public agent constitutes an extrajudicial executive title. With this understanding, the Chamber, by a majority, knew about the appeal and granted it. “(EDcl in REsp 793.969 / RJ, Rel. Minister JOSÉ DELGADO, FIRST CLASS, judged on 11/21/2006, DJ 14/12/2006 , pp. 279)

Thus, it remains clear that the note of commitment has its characteristics of validity, which, being present, makes the title executable.

With regard to the attachment of credit contained in a note of commitment, it is possible to do so in both the legislation and the existing case law, since the amount to be eventually pledged is committed, with prior budgetary authorization, for payment to a particular creditor / contractor with the Public Administration.

There are understandings that the pledged value would not be liable for attachment because it is a public good, as expressed in Article 100 of the Civil Code [1], being inalienable and therefore unenforceable. However, this thesis does not prevail in view of the fact that the pledged value has already been removed from the state financial group for the payment of an obligation settled or fulfilled by the creditor.

That is, the amount is already previously allocated to the creditor, who can either assign his credit or suffer the attachment of the latter for payment of collection of third parties, through an enforcement process.

Thus, it is assumed that it is totally plausible and legal to attach the credit arising from a note of commitment, having both legal and jurisprudential background.

[1] Art. 100. The public goods of common use of the people and those of special use are inalienable, while maintaining their qualification, in the form that the law determines.

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Rodrigo Alberto Correia da Silva

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Category: ADMINISTRATIVE, REGULATORY AND ENVIRONMENTAL, Rodrigo Alberto Correia da Silva

Tags: administrative, correia dasilva advogados, csa, environmental, regulatory

Posted in: 16/07/2019

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