A trava bancária na recuperação judicial e o seu impacto nas formas de financiamento da empresa: uma análise através da teoria do 'common pool assets' de Thomas H. Jackson
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Data
2013-11
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Orientador(res)
Cavalli, Cássio
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Resumo
The object of study of the present paper is the Trava Bancária, a legal mechanism stipulated by art. 49, § 3º of the Brazilian Bankruptcy and Reorganization Law, by means of which credits taken out by company with financial institutions are guaranteed by the creation of fiduciary liens over the company’s receivables in favor of the financial institutions. This paper will analyze the peculiarities of this type of fiduciary guarantee, especially with regards to the prerogative given to creditors guaranteed by this type of guarantee of not having to submit their credits to the judicial reorganization procedures entered into by the company to get paid. An analysis will be made to show that if the trava bancária is not lifted, this will negatively impact the going concern value of the company in reorganization, because this mechanism creates a creditor who is completely protected against the effects of the reorganization procedures, preventing the maintenance of a collective and compulsory forum in which all of the debtors of the creditors will have to renegotiate their credits, and work together to maintain the going concern value of the company, so that the company can be reorganized and ultimately all the creditors repaid. The objective is to show that the existence of the trava bancária in the judicial reorganization procedures may negatively affect a companys’ means of financing via equity. This conclusion can be reached when one thinks about the fact that, a companys’ shareholders are the last in line to be paid in case of a judicial reorganization, and so, if the potential shareholders takes into account the fact that the trava bancária may decrease a companys’ going concern value, diminishing the companys’ chance for reorganization, the potential shareholder may not want to risk buying shares from this company and may start to insert the existence of the trava bancária as a variable when carrying out the valuation process of companies. The theoretical basis that will be used to base the premises that the trava bancária negatively impacts a companys’ going concern value, making it harder for company under judicial reorganization to reorganize themselves, will be extracted and elaborated with basis on the Common Pool Assets Theory developed by the North-American writer, Thomas H. Jackson. This paper is relevant due to the great importance that reorganization procedures present for companys’ with financial troubles and their creditors, as well as the importance that these types of procedures have attained in Brazil. Effectively, since 2005 more than 4000 (four thousand) companies have filed for judicial reorganization in Brazil. Also, this paper is relevant because it addresses the matter of how Companys’ may finance their activities, a matter which is incredibly sensitive in Brazil, where the interest rates are very high, contributing to the so called Custo Brasil, and which directly impacts countries’ economic policies.
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Fiduciary liens on receivables Brazilian Bankruptcy and Reorganization Law Article 49, § 3º Equity financing Banking interest rate and spread Trava bancária Alienação fiduciária de recebíveis Lei de Recuperação Judicial de Empresas Art. 49, § 3º Financiamento por equity Taxa de juros e spread bancário