Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
In a judgment held on March 21, 2019, the First Panel of the Superior Court of Justice (STJ) unanimously dismissed the interlocutory appeal filed by the State of Santa Catarina and recognized the possibility of execution of the astreintes (daily fine applied when a judicial decision is not complied with) by the successors of the party benefiting from the patrimonial claim, when the plaintiff dies.
In the case in question, the daily fine was set as a way of forcing the state body to provide the medication requested by the plaintiff. Due to non-compliance with the court decision, the plaintiff filed an enforcement action to collect payment of the accumulated daily fine. During the course of the lawsuit, the plaintiff died and there was a request for the heirs to be included in the active part of the execution, which was denied by the Court of Justice of the State of Santa Catarina on the grounds that it was a non-transferable claim.
However, in the Special Appeal[1] filed by the heirs, Justice Napoleão Nunes Maia Filho held that in lawsuits seeking to enforce the right to health, the daily fine set has a patrimonial nature. In this way, the obligation to pay a sum certain arises, in the alternative to the main claim for the supply of medication or treatment, which is entirely possible to transfer.
In addition, it reinforced the coercive nature of the daily fine in actions of this nature, since the state body would benefit from its own failure to comply with the preliminary injunction if the request to disqualify the heirs from being a party to the execution of astreintes were accepted.
Questions? Talk to our lawyers.
[1] STJ. AREsp nº 1139084 – SC (2017/0177693-4), Rapporteur: Justice Napoleão Nunes Maia Filho.
