O contrato de factoring no Brasil

• Autor(a) principal: Santos, Carla Bueno dos
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/24042
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Atipicidade; Contratos; Factoring; Responsabilidade pela solvência; Atypicality; Contracts. Factoring; Responsibility for solvency

Considered an atypical contract, factoring is a highly relevant commercial activity in the Brazilian market, especially for micro, small and medium-sized companies. It is an alternative to those looking for quick working capital, since it allows the company to negotiate their credits, resulting from their sales or from the provision of term service with factor, so that he can pay him in cash. The factoring activity, mainly the conventional one, which is the most practiced in Brazil, may be accompanied by a provision of financial and administrative management services, in which the factor will also be able to provide the customer (the company selling its accounts receivables) with support services under credit analysis, with the selection of the best customers; organization of accounts payable and receivable; negotiation with suppliers, etc., becoming a partner of the company. The main controversy concerns the accountability of the company for the assigned credit. There are discussions related to the circularity of the credit contained in the invoice, whether via assignment or endorsement, and disagreements regarding the debtor's default. This is because the factor, when providing management services, is able to assess the profile of the assigned invoices. Therefore, it must bear responsibility for the debtor's insolvency. Furthermore, the risk is inherent to the factoring activity, as it is one of the main characteristics of the institute. However, there is a divergent understanding in the doctrine that, if the contract signed between the parties has a provision for the accountability of the company for default, supported by the autonomy of the will and legislative absence, that rule must be obeyed. Another approach is the question of responsibility for the existence of the assigned credit, in which the understanding prevails that, unlike to answering for the solvency of the title, it is the full responsibility of the company to guarantee the existence of the assigned credit, including in case of eviction and redhibitory defects