The First Section of the Superior Court of Justice (STJ), in a recent ruling on Repetitive Appeals (REsp 1.666.542, REsp 1.835.864 and REsp 1.835.865), settled any disagreements regarding the appropriateness, application and extent of the attachment of debtors’ business income.
According to Justice Herman Benjamin’s opinion, since the 1973 reform of the Code of Civil Procedure, it is no longer necessary to exhaust all other measures to locate assets in order to authorize the attachment of income. In other words, this measure can be carried out even if it is necessary to relativize the legal order of preference, if the judicial authority believes that the other preceding assets are difficult to sell.
Despite giving a more permissive nature to the application of this constrictive measure, the judgment also considered the principle of less onerousness. In this sense, when deciding, it will always be up to the judicial authority to: (i) establish, at the time of attachment, a percentage that does not make business activity unfeasible; and (ii) fully justify the decision, whether it is feasible to apply the measure or not.
Thus, we can see that the STJ’s ruling on the Repetitive Appeals brought greater clarity and legal certainty regarding the attachment of debtors’ business income, establishing more objective criteria and guaranteeing the protection of companies’ economic activity, without disregarding the interests of creditors in recovering their debts.
We are attentive to new case law and discussions in all areas of the Judiciary in order to provide our clients with appropriate and effective advice.
