Two recent appeals (Resp 1.955.574/SP and Resp 1.955.539/SP) were affected by Brazil's Superior Court of Justice (Superior Tribunal de Justiça/STJ) to be judged under the country’s repetitive appeals system – thus making judgments’ outcomes mandatory across all Brazilian courts.
The examination concerns the application of atypical measures claimed by creditors against debtors, notably in executions. Creditors whose credit satisfaction was frustrated by debtors’ lack of seizable assets sought out coercive alternatives such as suspension of Brazil's Driver's License (Carteira Nacional de Habilitação/CNH), seizure of passports and cancellation of credit cards, among others.
Based on art. 139, IV, of CPC/15 (Código de Processo Civil), measures such as these are controversial, and were authorized by certain judges while disallowed by others. The issue was also controversial within the STJ itself, although most decisions tended to authorize them, provided that contradictory, broad defense and, above all, reasonableness and proportionality were preserved. Often debtors' behavior is decisive in granting these measures or not.
So Brazil's Superior Court of Justice decided to affect the matter towards a binding decision. All executions involving atypical measures are suspended – even though we consider that the suspension covers only those in which these measures had been allowed.
Offering legal certainty to this controversial matter by means of a binding decision is undoubtedly commendable, but the suspension once again punishes creditors who had their requests granted in execution – and this may lead to procedural delays that may last up to a year.
As for merit, the dividing line will certainly be the ever pertinent question to the debtor: can't you pay or won't you pay?
