The 3rd Panel of the Superior Court of Justice, in a recent decision[1], held that extrajudicial notification sent to the party’s e-mail address in a fiduciary alienation contract is not valid.
The case discussed the validity of the extrajudicial notification sent to the debtor’s e-mail address indicated in the contract for the purposes of proving default in a search and seizure action arising from default on a financing contract guaranteed by a fiduciary sale.
According to the court, the expression “may be proven by registered letter with acknowledgment of receipt adopted by the reform legislator” must be interpreted in the light of the stricter previous rule in order to denote the greater flexibility and simplicity incorporated by Law No. 13,043.”
For the Rapporteur of the case, Justice Nancy Andrighi: “The possible need to expand and deepen the instructional activity, even determining the production of expert evidence in order to ascertain whether the message addressed to the fiduciary debtor was delivered, read and whether its content is the same as that stated by the fiduciary creditor, would install a procedural rite clearly incompatible with the dictates of Decree-Law No. 911/1969.
On this basis, she heard the appeals and did not uphold them, holding that extrajudicial notification sent to the e-mail address is not valid for the purposes of proving default.
Thus, in cases where extrajudicial notification is required to prove default, it must be sent by registered letter with acknowledgment of receipt in order to validate its purpose, i.e. unequivocal acknowledgment of receipt.
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] REsp nº 2.022.423, REsp nº 2.035.041, REsp nº 2.037.012 and REsp nº 2.051.091
