A aplicação da teoria do adimplemento substancial na recuperação judicial da empresa no direito brasileiro

Abstract

This work defends the application of the substantial performance in judicial recovery, whose legislation submits that any failure to comply with the recovery plan entails in bankruptcy. In a literal interpretation of Judicial Recovery Law n. 11.101/2005, any irrelevant default makes the judicial recovery impossible. On the other hand, according to substantial performance, which is based on contractual law, an irrelevant non-compliance should not cause the contractual resolution. Therefore, through a bibliographical and jurisprudential survey, aiming at the state-of-the-art domain on the subject and a detailed analysis of the collected data, this research shows that, in view of substantial performance, should have a proportionality between the breach of the agreement and its legal effect, not allowing that any simple noncompliance with an obligation of the recovery plan leads, inexorably, to the bankruptcy. Thus, starting from a current conception of the company, and also from the perspective of the social function, it can be seen the contractual nature of the recovery plan, that must observes the compatibility between the theory of substantial compliance and its application in the context of the company’s judicial recovery. In addition to serving as an instrument of equanimity, the substantial performance is based on the Brazilian legal system, having ballast in the constitutional principle of the company’s social function, in the principle of preserving the company and in the idea of objective bona fide.