The causa debendi, or cause of debt, constitutes the legal and factual foundation that justifies the existence of an obligation. Within the scope of Civil and Business Law, especially regarding credit instruments, this institute defines the underlying relationship that gave rise to the drawing or issuance of a document, being fundamental for the analysis of the autonomy and abstraction of exchange obligations.
Concept and Foundation
The causa debendi represents the underlying legal transaction — the causal origin — that motivates the constitution of an obligatory bond. In the Brazilian legal system, the relevance of this concept manifests itself with greater intensity in Exchange Law. Unlike common contracts, where the cause is an essential element of validity, the principle of abstraction prevails in credit instruments, which detaches the instrument from its original cause after circulation.
The legal nature of the causa debendi is that of a causal legal transaction. While the credit instrument, in its circulation phase, assumes an abstract nature, the fundamental relationship (causal relationship) remains governed by the Law of Obligations. The discussion about the causa debendi invariably arises when one seeks to discuss the enforceability of a credit instrument between the original subjects of the relationship (drawer and drawee, or beneficiary and issuer), allowing for the opposition of personal defenses.
Historical Origin and Evolution
The concept derives from the Roman Law tradition and was consolidated in the Italian and German doctrine of the 19th century. Historical evolution points to the need to provide security to commercial traffic. Exchange abstraction, which limits the investigation of the causa debendi, was developed to ensure that the credit instrument could circulate freely, without the third-party holder in good faith being harmed by defects in the original relationship between the contracting parties.
Legal Provision and Framework
The Brazilian legal system regulates the matter under the aegis of the 2002 Civil Code and extraordinary legislation. Highlights include:
- Law No. 10.406/2002 (Civil Code): Articles 887 to 926, which deal with the general theory of credit instruments, adopting the principle of autonomy.
- Uniform Law of Geneva (Decree No. 57.663/1966): Articles 16 and 17, which establish the discipline of defenses opposable to the holder, allowing the discussion of the cause only between immediate parties.
- Law No. 7.357/1985 (Check Law): Article 20, which reinforces the autonomy of the obligation.
Practical Application and Jurisprudence
The understanding consolidated in the Superior Court of Justice (STJ) is that the causa debendi is debatable only between immediate parties. Once the instrument circulates, abstraction prevents the debtor from opposing against the third-party holder defenses based on their personal relationships with the original creditor, unless the holder, when acquiring the instrument, acted consciously to the detriment of the debtor (bad faith).
Current jurisprudence, notably in the judgment of Objections to Execution (Art. 914 et seq. of the 2015 CPC), reaffirms that, since the credit instrument is endowed with abstraction, the burden of proof regarding the non-existence or defect of the causa debendi lies with the debtor, as the instrument enjoys a presumption of liquidity, certainty, and enforceability.
Related Principles and Doctrinal Divergences
The study of the causa debendi is inseparable from the principles of cartularity, literalness, and autonomy. Modern doctrine, influenced by the social function of the contract (Art. 421, CC), has mitigated the rigidity of abstraction in cases of instruments issued without due consideration ("cold" instruments), admitting the deconstitution of the obligation when the absence of cause is proven, even if the instrument has already circulated, provided that the bad faith of the holder is proven.
Contemporary Relevance
In the current scenario, the discussion about the causa debendi is crucial in judicial reorganization and bankruptcy proceedings, where the judicial administrator and creditors seek to verify the legitimacy of the registered credits. Accounting transparency and the requirement of documentary backing for the issuance of credit instruments have become public policy imperatives to prevent fraud against the national financial system.
Legal and Jurisprudential References
- BRAZIL. Law No. 10.406, of January 10, 2002. Establishes the Civil Code.
- BRAZIL. Decree No. 57.663, of January 24, 1966. Promulgates the Uniform Law on Bills of Exchange and Promissory Notes.
- BRAZIL. Superior Court of Justice. Precedent (Súmula) No. 531: "Civil construction contracting can be the object of a credit instrument." (Context of backing discussion).
- STJ, AREsp 1.845.233/SP, Rel. Min. Marco Buzzi, Fourth Panel, judged in 2022: Consecration of the impossibility of discussing causa debendi against a third party in good faith in a circulated instrument.
- MARTINS, Fran. Títulos de Crédito (Credit Instruments). Rio de Janeiro: Forense.
