Aubrey Renan de Oliveira Leonelli
Lawyer at Marcos Martins Advogados
It is a fact that onerous obligatory relationships involve installments and consideration. The ordinary development of the relationship provides for each party to fulfill the obligation assumed. However, in some cases the end of the obligation does not come naturally. In these cases, it is imperative to guarantee the creditor the means to receive their credit, even if sometimes they have to resort to coercive methods.
The possibility of seizing the debtor’s assets through the courts is a means of guaranteeing the creditor of an obligation resulting from the legal bond established between the parties, whether judicial or extrajudicial, its satisfaction. Cândido Rangel Dinamarco defines attachment as “the act by which the asset that will be liable for execution is specified”[1]. According to the illustrious writer, attachment affects a specific asset, committing it to execution in order to satisfy the debt[2]. In this way, attachment is the legal possibility of attaching an asset, offering a guarantee that the debt will be settled in some way. It is a question of legal and social security.
However, just as the law offers guarantees to the creditor, certain rights of the debtor must be observed. Limits imposed by the Constitution are present in order to provide legal defense for the minimum essential for maintaining the dignity of the debtor’s human person.
“When it is said that an asset is unseizable, the idea expressed in this statement is that the asset cannot be removed from the debtor’s assets, which means that it is not only excluded from the possibility of being seized but, above all, from being expropriated”[3]. In this way, the law lists certain types of assets which, due to their nature or social function, are protected against expropriatory attacks by creditors seeking to satisfy their claims. As an example of rules governing this matter, we can cite Article 649 of the Civil Procedure Law, as well as Federal Law No. 8,009/90, which provides for the unseizability of family property.
In particular, the attachment of wages is a controversial issue that still divides the position of jurists and courts as to whether it is appropriate. In principle, according to the literal provision of article 649, IV, of the CPC, salaries, wages and allowances, due to their alimentary nature, would be absolutely unseizable, i.e. under no circumstances would it be possible to seize them, with the exception of the payment of alimony, since this is also alimentary in nature.
In the 2006 procedural law reform bill, there was a provision for the attachment of wages in fractions that did not compromise the minimum existential level and the dignity of the human person. This proposal was vetoed by the president, who considered wages and other foodstuffs to be absolutely unseizable[4].
The veto was criticized by the doctrine, as there would be a subversion of the institute of the dignity of the human person when it comes to food that exceeds a ceiling determined by law. What affront to the existential minimum would there be in the attachment of the amount of salary that exceeds the established ceiling?
Therefore, a balance must be considered between the guarantee of the minimum existential minimum, which protects debtors in their subsistence, and procedural effectiveness, which occurs through the delivery of the good of life by the Judiciary. However, it is possible to consider that absolute unseizability is not the best way to deal with the issue, since it may not be suited to the current social reality, and a more in-depth analysis is required as to the possibility of seizure falling on the defendant’s salary, without affecting the dignity of the human person and their survival.
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[1] DINAMARCO, Cândido Rangel. Institutions of Civil Procedural Law. 3. ed. São Paulo: Malheiros, 2013. p. 597.
[2] DINAMARCO, Cândido Rangel. op. cit. loc. cit.
[3] DINAMARCO, Cândido Rangel. ob. cit., p. 380.
[4] DIDIER JR.; Fredie. Subsidies for a theory of unseizable assets. In: Sérgio Shimura; Gilberto Gomes Bruschi (Org.). Execução civil e cumprimento de sentença. v.3. São Paulo: Método, 2013.
