Judge ends judicial recovery based on the “theory of fait accompli”

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Based on the “theory of fait accompli”, the 1st Judicial Court of Campina Grande do Sul (PR) validated all acts of judicial recovery of the metal stamping company Brandl do Brasil carried out before the process was annulled and decreed, on the second on Friday (23/7), the end of the company's restructuring.


The company was represented in the case by lawyers Fabiana Solano , Clara Moreira Azzoni and Beatriz Kyrillos , from the insolvency and debt restructuring and litigation team at Felsberg Advogados.

In 2014, the Court accepted Brandl's request for judicial recovery. However, two years later, the process was annulled by the Paraná Court of Justice due to disputes between two creditor banks — Itaú and Bradesco.

At the end of 2017, judge Luciana B2B Lead Benassi Gomes Carvalho, from the 1st Judicial Court of Campina Grande do Sul, considered all acts carried out in the recovery of the company between the beginning of the process and its annulment to be valid.


The judge based her decision on the “theory of fait accompli”. This thesis applies to exceptional cases, when acts carried out pursuant to a court order must be preserved, even if, later, such decision is revoked. The theory is linked to the principle of legal certainty and seeks to ensure that people and companies are not afraid to comply with decisions for fear that they will later be overturned.

Thus, as one year, nine months and 11 days had already passed since the first decision that authorized Brandl's rehabilitation, the judge pointed out that there were only two months and 19 days left in the process, since it lasts two years, according to with article 61 of the Bankruptcy Law ( Law 11,101/2005 ).

On Monday, Luciana Carvalho ordered the end of the company's rehabilitation process, despite requests from creditors for it to be converted into bankruptcy due to alleged breach of obligations by Brandl.



According to the judge, after the end of the two years of judicial recovery, failure by the company undergoing rehabilitation to comply with its obligations does not result in its bankruptcy. And the existence of debts, credit challenges and appeals does not prevent the restructuring process from being closed. Therefore, creditors must charge the company individually in court, he highlighted.