Beatriz Benedete Cardoso
Lawyer at Marcos Martins Advogados
Last week, the 4th Panel of the Superior Court of Justice (STJ) resumed the judgment of RESP No. 1.731.193/SP to define whether or not the Selic rate is applicable to civil debts, with regard to civil liability for contractual and non-contractual damages.
The discussion arose from the interpretation and application of article 406 of the Civil Code (CC) to private relations. This article provides for the application of the rate in force for late payment of taxes owed to the National Treasury – in this case, the Selic rate. However, the Selic rate simultaneously includes interest on arrears and monetary correction in its calculation, which would have different initial terms in civil debts.
In his vote, Reporting Justice Luís Felipe Salomão pointed out that the Selic rate does not reflect the sum of default interest and the real depreciation of the currency, since the Selic rate is not a mirror of the market, but rather a political instrument in the fight against inflation, and is not the most appropriate tool to be applied in the context of private law. Justice Antonio Carlos followed the rapporteur’s vote.
To the contrary, Justice Raul Araújo stated that there is no reason to impose an interest rate of 1% per month on civil debtors, which is why he defended the application of the Selic rate, under the terms of article 406 of the Civil Code. Justice Isabel Galotti joined the dissent.
After the Justices’ votes, the 4th Panel decided to submit the discussion to the STJ’s Special Court, given the relevance of the issue and the impact it will have on court cases.
In the same vein, RESP 1.081.149/RS is also on trial, with Justice Luís Felipe Salomão, the appeal’s rapporteur, voting in favor of applying interest at 1% per month. The appeal will remain on hold pending judgment of the issue by the Special Court.
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