Tatiane Bagagí Faria
Lawyer at Marcos Martins Advogados
In a recent decision, the 3rd Panel of the Superior Court of Justice ruled on Special Appeal No. 1942671/SP (2020/0157074-0) and established the understanding that the property offered for seizure by the debtor does not replace payment in cash of the amount charged, considering the preferential order of seizure and the procedural logic that guides the enforcement process.
In the case in question, after being ordered to pay the debt enforced in a provisional judgment, the debtor offered a property as payment as a way of exempting himself from the fine and attorney’s fees provided for in article 523, paragraph 1, of the Code of Civil Procedure.
Justice Nancy Andrighi, in her opinion, stressed that it is up to the creditor to accept something other than the amount in cash as a means of satisfying the obligation, since they are not obliged to accept something other than that stipulated in the judgment, even if it is equivalent to or greater than the amount of the debt. The liquidity inherent in execution for a sum certain was applied by analogy.
With this understanding, the debtor’s appeal was dismissed, and the fine and attorney’s fees were levied on the amount collected, due to the failure to pay the amount owed in cash within the legal deadline set out in the legislation, because the creditor had refused the offer for the property and exercised its legal right to receive in cash.
Marcos Martins Advogados is attentive to new developments in the area of procedural law, in order to provide adequate and effective advice to our clients.
