In a recent decision[1], the Special Court of the Superior Court of Justice ruled that, in exceptional cases, it is possible to seize debtors’ salaries to pay non-food debts. In the specific case, the Reporting Justice, João Otávio de Noronha, determined that the amount necessary for the debtor to finance his living costs should be measured.
In this way, this new decision has made the impeniability of wages more flexible, meaning that in practice this relaxation can be applied in similar cases with an impact on debtors in general, making it possible to authorize the attachment of wages of less than 50 minimum wages.
Justice Noronha was guided by the theory of the existential minimum “admitting the attachment of the part of the salary that exceeds what can be characterized as notably alimentary”. According tothe Justice, the court of origin dismissed the appeal and stated that the specific case did not fall within the exception established by the STJ’s case law.
In addition, the reporting Justice also considered that “By using the criteria of reasonableness and proportionality, I think that the inspection of this limit of 50 minimum wages [provided for in the law] deserves criticism insofar as it is very out of touch with the Brazilian reality, making the device practically innocuous, in addition to not reflecting the true scope of impenetrability, which is the maintenance of a decent reserve for the support of the debtor and his family.”
On this basis, he upheld the Motion to Dismiss the case on the possibility of relativizing the impenetrable nature of the funds, regardless of the amount received by the debtor, as long as the amount that ensures his dignified subsistence and that of his family is preserved.
Therefore, with this new understanding, there is a precedent that can be applied in similar cases in order to allow the attachment of wages in cases where no assets can be found, being an exceptional judicial measure that could have an impact on enforcement proceedings throughout the country.
Marcos Martins Advogados is attentive to the latest case law and discussions in all areas of the Judiciary in order to provide adequate and effective advice to its clients.
[1] EREsp nº 1874222/DF (2020/0112194-8)
