A personal guarantee is routine in contracts signed by a company — franchise agreements, commercial leases, financing, supply contracts. The guarantor, more often than not, is the partner or officer themself, pledging their own assets. Two recent rulings, one from the São Paulo Court of Justice and one from Brazil's Superior Court of Justice, draw a precise line around what is left of that guarantee once the partner leaves the company, and what the partner cannot do while it still stands.
The Question
Two questions decide, in practice, the risk carried by anyone who has personally guaranteed an obligation of their own company. Does leaving the company, by itself, end that guarantee? And, while it remains in force, can the guarantor challenge the terms of the contract it secures?
The Analysis
The 2nd Reserved Chamber of Corporate Law (2ª Câmara Reservada de Direito Empresarial) of the São Paulo Court of Justice (Tribunal de Justiça de São Paulo, TJSP) addressed the first question in a ruling handed down on August 11, 2026 (Civil Appeal 1060074-89.2021.8.26.0576). A franchisor of professional training courses sought R$ 172,600 in unpaid royalties, advertising-fund contributions and management-system fees, plus a contractual penalty, from the franchisee and its partner-guarantors. One defendant appealed, arguing he had withdrawn from the company in 2017 — before the default occurred — and that his liability as a withdrawing partner had already lapsed under the term set by the Civil Code. He further argued that the franchise's later transfer to a third party amounted to a corporate succession capable of extinguishing the guarantee, and that the creditor's tolerance of earlier late payments amounted to a tacit waiver of the debt.
The reporting justice, Judge Maurício Pessoa, rejected the time-lapse argument, drawing a distinction that decides the case. Article 1,032 of the Civil Code does limit in time a withdrawing partner's liability for corporate obligations (for those predating the exit, until two years after the amendment is registered; for later ones, while registration has not been requested) — but that provision governs a partner's liability for the company's obligations, not a guarantor's liability for a debt he personally undertook to secure. The two bonds arise on different planes, even if born around the same deal: one flows from holding an equity stake; the other from an autonomous act of will — the guarantee — that the partner gave as an individual, alongside his status as a partner, not because of it. That is the point of the ruling's formula: "a guarantee is an accessory contract, but autonomous in relation to the company's articles of association (contrato social)" — accessory to the franchise agreement it secures, autonomous from the corporate bond that once gave rise to it. Withdrawing from the ownership structure has effects on the corporate plane, Article 1,032's term included; it does not, by itself, reach the personal guarantee given on the civil-law plane, governed by Article 835: releasing an open-ended guarantee requires the guarantor to give the creditor express notice, and the guarantor remains bound for sixty days from that notice. Since the former partner had not shown he had given it, the guarantee remained in force — and with it fell the argument that transferring the franchise to a small company amounted to a corporate succession extinguishing the guarantee: what it secures is the debt owed to that specific creditor, not the identity of whoever came to run the franchised business.
The Nuance
It bears noting that the word "accessory" appears in both rulings, but qualifies different things — conflating them is the most common error in this area. In the TJSP ruling, the guarantee is accessory to the franchise agreement it secures, yet autonomous in relation to the articles of association of the company it guarantees: that is why it survives the breakdown of the corporate bond, which arises on a different plane. In REsp 1,977,431-RS, decided on June 22, 2026 by the Fourth Panel of the Superior Court of Justice, unanimously, under the rapporteurship of Justice João Otávio de Noronha (STJ Case Law Digest No. 898), it is the guarantee's accessory relationship to the underlying contract — not the corporate relationship — that does the opposite work: it separates the substantive-law relationship between the creditor and the debtor of the underlying deal from the relationship, of a different nature, established by the secondary guarantee contract. Belonging only to that second relationship, the guarantor has no standing to seek, in his own name, the revision of terms of the underlying contract; a merely indirect economic interest in reducing the debt does not cure that lack of standing, whether the guarantee is joint-and-several or subsidiary.
The distinction carries a concrete, often-overlooked consequence: the guarantor is not left without a tool. When called on to pay, he keeps the defenses of Article 837 of the Civil Code: those personal to him and those extinguishing the obligation that belong to the principal debtor. Article 831 grants whoever pays a debt in full the right to step into the creditor's shoes — subrogation — and collect from the principal debtor what he paid on their behalf. That is the order the case law protects: the guarantee honored first, reimbursement from the debtor close behind — the path genuinely open to anyone who secures someone else's debt.
Practical Implication
Read together, the lesson from the two rulings does not split into two audiences — it describes two stages of the same problem, for the same partner. Before leaving a company, ending the corporate relationship is not enough: any personal guarantee given on the company's behalf needs to be ended too, with the same formal care. For an open-ended guarantee, that requires express notice to the creditor, stating the intent to be released from the guarantee, to start the sixty-day period under Article 835. In a lease, federal Law No. 8,245/1991 (the Tenancy Law, Lei do Inquilinato, Article 40, X) allows release only once the lease has been extended for an indefinite term, with one hundred and twenty days of liability after notice; and, for a fixed-term guarantee, Article 835 does not apply. A creditor's tolerance of past defaults, the business's succession to a third party, or the mere passage of time do not, on their own, substitute for that act — no more than the withdrawing partner's own two-year term under Article 1,032 substituted for it in the case at hand.
It is that notice — not just the amendment to the articles of association — that closes the loose end when leaving a company. Without it, the guarantee remains in force, and the former partner also cannot seek, in his own name, the revision of the contract: the term, the adjustment, the collection method are questions that belong to whoever is a party to the underlying deal, the guaranteed party, not to whoever merely secures it. Article 831 of the Civil Code still reserves a path for a guarantor in that position — honor the guarantee, then step into the creditor's shoes to collect from the original debtor what he paid out — but it is the longer path: timely notice spares the former partner from having to walk it.
