O tratamento dos contratos de locação comercial de devedor locatário em recuperação judicial: uma análise à luz das tensões entre o direito material e concursal
Data
2014-11
Autores
Orientador(res)
Cavalli, Cássio
Métricas
Título da Revista
ISSN da Revista
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Resumo
This study aims to verify the treatment of Commercial Lease contracts Lessee Debtor in Judicial Recovery. The 11.101/2005 law provides, in its articles 117 and 119, VII that bilateral contracts are not terminated by the bankruptcy and the bankruptcy of the lessee, the trustee may at any time can terminate the contract. However, the law is laconic about the Judicial Recovery process. So, the study also pretend to verify the applicability of the relevant articles of bankruptcy law, the debtor contracts submitted to the Judicial Recovery process. To realize a consistent interpretation with the efficiency expected of the legislation under discussion, the methodology used in this work is the Economic Analysis of Law, according to the author Thomas H. JACKSON. Thus, this study is built on the concepts of common pool assets and executory contracts to assist the understanding of the function of the lease agreements in the Judicial Recovery Process. In this sense, the study is important because it establishes teleological interpretation parameters of tender legislation considering the tensions between the nonbankruptcy limitations and bankruptcy law apply the hypothesis formulated in this assignment. So, it was found that the subject generates divergence of understanding with the Brazilian jurisprudence, when related to the possibility, or not, to evict tenant Debtor in Judicial Recovery. The controversy round mainly around two issues: (a) the application of the principle of preservation of the company (art. 47, 11.101/2005 law; (b) (i)liquidity of eviction for non-payment for the purposes of article 6 of the 11.101/2005 law.Finally, the study is going to verify the way in which the law deals with the issue of the Commercial Lease contracts Lessee Debtor and its compatibility with the Economic Analysis methodology applicable to bankruptcy law.