According to current legislation, certain credits are not subject to judicial recovery, as is the case of creditors in the position of fiduciary owner of movable or immovable assets, commercial lessor, among others.
However, there is an exception when it comes to goods essential to the company’s business activity, called “capital goods”.
The definition of a capital asset consists of a tangible asset (movable or immovable), used in the company’s production process, as long as it is neither perishable nor consumable. Therefore, financial resources and credit rights can be freely expropriated by creditors at any time. According to the STJ, financial assets do not qualify as capital goods, as they are not essential to the development of economic activity.
Therefore, essential assets are restricted to capital assets that are in the hands of the debtor and that are essential in the company’s production process. In other words, the result of crop production does not constitute a capital asset and, therefore, its essentiality for rural business activity is not recognized.
What can be observed is that recent decisions take into account the concrete situation to verify whether a certain capital asset is really essential or not to business activity, by verifying the corporate purpose developed by the debtor. Thus, the stance adopted by the higher courts has been favorable to creditors, who will have an easier path to executing their credit that is not subject to Judicial Recovery.
