Nathália Guedes Brum
Lawyer at Marcos Martins Advogados
Article 833, item IV, of the 2015 Code of Civil Procedure[1] establishes that salaries, allowances, wages, salaries, among others, are unseizable.
This unseizability is intended to guarantee the maintenance of the debtor’s fundamental rights, set out in Article 5 of the Federal Constitution, in particular the dignity of the human person.
However, the Superior Court of Justice has consolidated its understanding that the general rule of unseizability mentioned above can be relaxed in order to guarantee the effectiveness of judicial protection, as long as enough is preserved to guarantee the subsistence of the debtor and his family.
It should be noted that the 2015 Code of Civil Procedure now allows the rule to be mitigated compared to the 1973 Code of Civil Procedure, by replacing the expression “absolutely unseizable”, contained in the heading of the former article 649, with “unseizable”, as it appears in the current article 833.
The 2015 Code of Civil Procedure also provides in the second paragraph of article 833[2] for the possibility of garnishing wages to pay alimony and amounts that exceed 50 minimum monthly salaries.
Along these lines, the 4th Panel of the Superior Court of Justice, in the judgment of an Interlocutory Appeal, recently ruled that wages can be garnished to pay off debts arising from residential rents.
This decision was based on the fact that the debt arising from residential rents between individuals constitutes “a financial commitment of an essentialnaturefor the life of any person”, since “housing expenses necessarily make up the budget of every person who is the head of a family and are normally paid using part of the income earned from the obligor’s monthly salary”.
In this way, it would not be plausible to defend the unseizability of salaries to settle debts arising from residential rents, since the payment of these expenses normally takes place through the individual’s monthly remuneration, since as the Rapporteur pointed out, they make up the family budget.
In addition, the decision handed down by the 4th Panel of the STJ was aimed at preserving social relations and the rights of the rent creditor, since the landlord of residential properties also normally depends on the credits arising from the rent to make up his income.
It is necessary to clarify that, even if the principle of relativizing the impeniability of salaries is applied, making debt enforcement effective, the minimum necessary for the subsistence of the debtor and his family must always be guaranteed, without violating the constitutional principle of human dignity.
In this sense, the 4th Panel of the STJ allowed the attachment of 15% (fifteen percent) of the defendant’s gross monthly salary, thus ensuring the constitutional rights inherent to both the creditor and the debtor. In the meantime, the case law of the Superior Court upholds the possibility of garnishing wages to settle debts arising from residential rents, in order to guarantee the satisfaction of the creditor, while preserving the dignity and subsistence of the debtor.
[1] Art. 833, CPC. The following are unseizable:
(…)
IV – salaries, allowances, wages, salaries, retirement benefits, pensions, savings and savings accounts, as well as amounts received at the discretion of a third party and intended for the support of the debtor and his family, the earnings of self-employed workers and the fees of liberal professionals, with the exception of § 2.
[2]Art. 833, CPC.
§ Paragraph 2 The provisions of items IV and X of the caput do not apply to the case of attachment for payment of maintenance, regardless of its origin, as well as to amounts exceeding 50 (fifty) minimum monthly salaries, and the attachment must comply with the provisions of art. 528, § 8, and art. 529, § 3.
