Natália Fioravanti Salvadori
Lawyer at Marcos Martins Advogados
In a recent judgment[1] handed down by the 13th Chamber of the São Paulo State Court of Justice, it was admitted that an extrajudicial enforcement action based on a contract without the signatures of two witnesses could proceed.
The TJSP took the view that the case required further evidence, despite the provisions of article 784, III, of the CPC, which stipulates that the document on which enforcement is based must be signed by the debtor and two witnesses. The TJSP’s reasoning was based on the STJ’s previous understanding that the absence of the signature of the second witness could be mitigated, exceptionally, when the certainty of the existence of the agreement could be obtained by other means.
The case in question was accompanied by extensive evidence, consisting of e-mails and invoices, which, in the opinion of the TJSP, demonstrated the relationship between the parties, and therefore the validity of the contract and its recognition as an extrajudicial enforcement order.
In this way, the creditor was allowed to proceed with the enforcement action, which is a faster procedural route aimed at satisfying the debt and, for this reason, requires compliance with certain requirements, such as the signature of witnesses on a private instrument, in order for it to be enforceable, a requirement which, in this case, was mitigated by the existence of the extensive documentation presented by the creditor. Thus, the TJSP applied the Theory of Appearance to recognize the enforceability of the private instrument and allow enforcement regardless of whether the formal requirement for two witnesses to sign the executed contract was met.
Thus, the decision recognizes the prevalence of the creditor’s interest in the execution, opening the way for the attachment of assets in a more agile manner, which increases the chance of success in satisfying the credit.
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[1] TJSP; Interlocutory Appeal 2051456-23.2021.8.26.0000; Rapporteur: Heraldo de Oliveira; Judging Body: 13th Chamber of Private Law; Central Civil Court – 42nd Civil Court; Date of Judgment: 06/18/2021; Date of Registration: 06/18/2021.
