Haroldo Malheiros Duclerc Verçosa
Consultant at Marcos Martins Advogados
The judiciary has often been accused of causing uncertainty and legal insecurity in the functioning of the business market, triggering negative externalities and second-order effects. The case below is proof of this assertion.
The matter falls under Theme 677, and the following question has been submitted for judgment:
Proposal to revise the thesis established by the Second Section in REsp 1.348.640/RS, reported by Justice Paulo de Tarso Sanseverino, to define: whether, in execution, the judicial deposit of the amount of the obligation, with the consequent incidence of interest and monetary correction borne by the depositary financial institution, exempts the debtor from the payment of charges arising from late payment, provided for in the judicial or extrajudicial enforcement instrument, regardless of the release of the amount to the creditor.
Scenario 1 – STJ Precedent 179
“The credit establishment that receives money as a judicial deposit is liable for payment of the monetary adjustment relating to the amounts collected.”
Thus, once the debtor had made the judicial deposit, the interest and adjustment on the debt ceased. Therefore, the bank paid the creditor.
Scenario 2 – Application of the Civil Code by the STJ in 2014
“In the enforcement phase, the judicial deposit of the amount (full or partial) of the judgment extinguishes the debtor’s obligation, within the limits of the amount deposited.”
There were therefore two alternatives that the debtor could choose from: (i) providing non-financial guarantees (surety, insurance, real estate, securities, etc.). In this case, the company’s cash flow would not be burdened, but the debtor would be subject to interest on the debt; and (ii) deposit money, which would not be subject to interest, but the cash flow would be sterilized for the duration of the lawsuit, which could be very long.
Scenario 3 – Current outlook
“In execution, the deposit made as a guarantee of the judgment or as a result of the attachment of financial assets does not exempt the debtor from paying the consequences of his delay, as provided for in the enforcement order, and when the money is actually delivered to the creditor, the balance of the judicial account must be deducted from the final amount due.”
The cash deposit is prejudiced because, in addition to sterilizing the cash flow, as mentioned above, the interest is not suspended, but will only be deducted from the final amount of the debt. In addition, there is the problem of removing the debtor’s default – without specific legal protection – making it essential that in publishing the above decision the STJ defines what it means to make payment or guarantee the debt for the purpose of default.
It should be noted that companies in the past may have chosen to make deposits in the presence of clear guidance, existing at the time of its decisions. This change in the STJ’s view will lead to the need to correct debts on companies’ balance sheets, which were considered settled. Not only that, but in the past, if the situation had been the same as the STJ’s second view, companies might have rethought whether or not it had been the right decision to file lawsuits, discuss foreclosures or make deposits.
An example of this change in orientation. The revision of balance sheets will have damaging effects, and may even affect the payment of dividends to shareholders of companies that do so, given the certain reduction in profits for the years affected.
As the judgment has not been finalized, due to a split among the justices, the STJ could adopt measures to mitigate the negative effects caused to companies, not to mention seeking an adequate and fair solution before the STF, given that legal certainty has been upheld and must be maintained at all costs.
