Aline Cavalcante de Souza Sanches
Lawyer at Marcos Martins Advogados
In a recent judgment in Special Appeal No. 1692371/MS (2016/0250761-4), the Superior Court of Justice defined, interpreting Article 940 of the Civil Code , that the sanction of double payment, owed by those who sue for a debt that has already been paid, must apply to the entire amount charged , and is not restricted to the amount actually paid unduly.
This legal provision deals with the application of the civil penalty of double payment for the legal collection of a debt that has already been paid, which can be claimed by the defendant in defense, regardless of whether an independent action is filed or a counterclaim is brought, and it is essential to demonstrate the creditor’s bad faith.
There was a controversy in Brazilian jurisprudence as to the amount of the penalty that should be applied, and the majority view was that, in order for the person wrongly sued to be able to demand double compensation, there had to be a payment, an effective disbursement of amounts, for a debt that had already been settled.
In other words, the Courts of Justice throughout the country had been interpreting that the compensation provided for in Article 940 of the Civil Code would only be applicable if there had been undue payment in the legal action brought.
However, the Superior Court of Justice, giving a new understanding to the aforementioned provision of civil legislation, defined that anyone who sues for a debt that has already been paid will be obliged to compensate the debtor for double the amount that was unduly charged, regardless of any actual disbursement.
It was thus established that the collection of a debt that has already been paid , in an act of bad faith on the part of the creditor, is enough for the defendant to be compensated for double the amount that was unduly demanded of him in a lawsuit.
In the case analyzed by the Superior Court, Banco do Brasil filed an Extrajudicial Execution of Title seeking to collect a Rural Credit Note issued for the purchase of animals, which had already been fully paid off by the contractor, but the defendant did not make any undue payment before the lawsuit wasfiled .
The financial institution argued that the order for double payment, in cases of collection for a debt that had already been paid, “should observe the amount considered to have been unduly paid by the defendant and not the total amount of the debt, charged by the bank in the execution, which was updated by the charges agreed in the credit instrument”.
However, the Fourth Panel of the Superior Court of Justice denied Banco do Brasil’s request, maintaining the financial institution’s order to refund double the full amount stamped on the unduly charged Rural Credit Note, considering the lack of actual disbursement to be irrelevant.
According to Reporting Justice Luis Felipe Salomão, the decision is in line with article 940 of the Civil Code, according to which anyone who sues for a debt that has already been paid will be obliged to pay the debtor double the amount unduly demanded, and the legal provision does not require actual payment, as irregular collection is enough.
The sanction will also apply in cases where the undue collection has only been of some of the installments of the debt that have already been paid.
The provision of the article analyzed here stems from civil liability, which consists of the legal duty to make reparation for damage caused by an unlawful act , resulting from an action or omission, carried out by the agent or by persons/things for whom they are responsible, which results in the violation of a legal rule.
In this case, it consists of the obligation of the natural or legal person who caused the unlawful act, in the form of the collection of a debt that has already been paid, to make reparation to the victim for the damage suffered, through double restitution of the amount unduly demanded.
The purpose of civil liability is to restore the economic-legal balance caused by an unlawful act that resulted in damage.
The mens legis ofarticle940 of the Civil Code is to curb abuses that may be committed by creditors when exercising their right to collect, as well as to compensate those who have been harmed by undue collection.
Marcos Martins Advogados is attentive to this issue and is ready to assist you in recovering and receiving compensation for damages caused by undue or overcharging, by applying the most contemporary jurisprudential understandings and Civil Law institutes.
