Novos enfoques acerca do direito de regresso no contrato de factoring

Abstract

This study aims to investigate the legal aspects and jurisprudential interpretations of the right of recourse in factoring contracts, focusing on the analysis of recourse clauses and commonly used financial guarantees, such as blank promissory notes and credit instruments. It examines the doctrinal position and the precedents of the Brazilian Superior Court of Justice, which support the understanding that factoring contracts, as a commercial finance operation, inherently involve the factor’s assumption of default risks. Thus, it is deemed unlawful to include clauses that assign recourse responsibility to the assignor in cases of default. The methodology is based on the analysis of relevant jurisprudence and doctrinal studies, which highlight the purpose of factoring as a credit acquisition activity through the discounting of receivables, underscoring the incompatibility between recourse practices and the nature of the contract, which is deemed abusive and distorts the essence of factoring. The study reveals that clauses stipulating guarantees, such as endorsements or the issuance of promissory notes to ensure the assignor’s solvency, have been interpreted as attempts to mischaracterize the inherently mercantile and guarantee-free nature of factoring. Ultimately, the research emphasizes the need to maintain a restrictive understanding of the right of recourse, aligning with the economic purpose of the contract and respecting the principles of social function and objective good faith, thereby contributing to legal certainty and stability in commercial finance relationship