Revisão Dir. Empresarial II - P1

Summary

This video covers key financial instruments such as promissory notes, cheques, avals (guarantors), and endorsements. The speaker explains the legal differences between them, focusing on their obligations and responsibilities. An aval provides a solidary guarantee where the guarantor can be pursued for payment directly, unlike an endorsement, which is a secondary obligation. The video also clarifies the legal processes for handling cheques, including post-dating and the implications of death or incapacity on cheque validity. The speaker emphasizes the importance of understanding these instruments for exams, with advice to study the relevant legal documents and participate in exercises for deeper learning.

Takeaways

• 😀 Aval (Guarantee) ensures that the avalista (guarantor) is equally responsible for the debt as the principal debtor and can be directly charged.
• 😀 Endosse (Endorsement) is an accessory obligation, meaning the endossista (endorser) is liable only after the primary debtor has been pursued for payment.
• 😀 A promissory note is a promise of payment that follows similar regulations to a letter of exchange but lacks the 'sacador' (drawer).
• 😀 Cheques are payment orders, but postdated cheques are common in business practice, despite legal risks if presented before the agreed date.
• 😀 The death or incapacity of the cheque drawer does not invalidate the cheque; it must be dealt with in the deceased's or incapacitated person's estate or through their legal representative.
• 😀 A cheque cannot include a clause for interest; however, interest can be claimed through a judicial process if the cheque is not paid.
• 😀 Aval must be total, and partial avals are not allowed. This means the guarantor is fully responsible for the entire debt amount.
• 😀 Legislation regarding cheques is governed by Law 7.357/85, which covers the issuance, payment, and liabilities related to cheques.
• 😀 A cheque must have sufficient funds in the drawer's bank account to avoid being considered fraudulent or leading to criminal charges.
• 😀 The teacher emphasized the importance of reviewing key laws such as the Civil Code, Law 7.357/85, and other relevant decrees for exam preparation.
• 😀 Students were encouraged to study the provided materials, participate in forums for feedback, and use their vade mecum (legal handbooks) to ensure they have the necessary resources for their exams.

Q & A

What is the difference between 'aval' and 'endosso'?

The main difference is that 'aval' is a personal guarantee where the avalista (guarantor) is equally liable as the original debtor and can be pursued directly by the creditor. In contrast, 'endosso' (endorsement) is a subsidiary obligation where the endorser is only responsible if the principal debtor fails to pay.

What are the two key characteristics of 'aval'?

'Aval' has two key characteristics: autonomy and equivalence. Autonomy means that the avalista can be pursued directly by the creditor without first contacting the principal debtor. Equivalence means the avalista’s obligation is equal to that of the principal debtor.

Where should 'aval' typically be written?

'Aval' is typically written on the front of the document. However, if desired, it can also be written on the back, with the word 'por aval' to indicate the guarantor’s commitment.

Is partial aval allowed?

No, partial aval is not allowed. The guarantee must be total, meaning the avalista guarantees the entire debt, not a portion of it.

What is the purpose of a promissory note?

A promissory note is a written promise to pay a certain amount of money on a specific date. It follows the same legislation as a bill of exchange but differs in that there is no third-party payee (the 'sacado'). Instead, it only involves the debtor (emitente) and the creditor (beneficiário).

How does the cheque function as a payment order?

A cheque functions as an order for immediate payment from a bank (the sacado) to the creditor. However, the cheque can be post-dated or pre-dated based on business customs, though it should only be presented for payment on or after the date written on it.

What does the Súmula 370 of the STJ state about post-dated cheques?

Súmula 370 of the STJ establishes that presenting a post-dated cheque before the agreed-upon date can result in damages, and the person who presents the cheque early may be subject to legal action for moral damages.

What happens if the person who issued a cheque dies?

If the person who issued a cheque dies, the cheque is not invalid. The creditor can still pursue payment, but the case will likely go through an estate process (inventário) where the estate or legal representative (curador) will handle the debt.

Can interest be charged on a cheque?

No, a cheque cannot include a clause charging interest. However, if the cheque is not paid and an action for its execution is filed, interest can be added through the judicial process.

What materials should students review for exam preparation?

Students should review the Vade Mecum, which includes key laws like the Civil Code, Law 7.357/85 (governing cheques), and other relevant legislation. They should also focus on the exercises, forums, and study materials provided in the course for a thorough review.