Application of the Selic Rate as a Method for Correcting Civil Debts Under Consideration by the STJ
The Special Court of the Superior Court of Justice (STJ) is in the process of deliberating on Special Appeal 1,795,982, which discusses the possibility of applying the Selic rate to correct civil debts. The issue arises from the interpretation of Article 406 of the Civil Code, which establishes that in the absence of an agreed-upon interest rate or a rate determined by law, interest will be set “according to the rate in force for the delay in payment of taxes owed to the National Treasury.”
The Rapporteur Minister, Luis Felipe Salomão, argues that the best criterion is the use of an official index for monetary correction added to an interest rate of 1% per month. In his opinion, he highlighted the issue of Selic incorporating default interest and monetary correction, which do not always accrue from the same starting point. Furthermore, he reasoned that the use of Selic could make delaying debt payment advantageous.
On the other hand, Minister Raul Araújo voted in favor of using the Selic rate, arguing that it is currently the benchmark that governs the Brazilian financial system, and there would be no doubt that this is the rate referred to in the relevant legal provision. In his view, judicial convictions subject to 1% per month default interest added to monetary correction provide civil creditors with much higher remuneration than any financial investment, as banks are tied to Selic. The continuation of the trial is scheduled for August 1st. The decision will have significant relevance, as it could determine the criterion for correcting civil debts in the country, affecting both creditors and debtors in judicial disputes.
(Superior Court of Justice, Special Appeal No. 1,795,982/SP, Rapporteur Minister Luis Felipe Salomão, Special Court)
TJSP Annuls Arbitral Award Due to Abstention of One of the Arbitrators’ Votes, in an Expansive Interpretation of Article 21, §2, of the Arbitration Law
The 1st Chamber for Business Law of the São Paulo Court of Justice (TJSP), in a decision rendered by Judge Cesar Ciampolini, decided to annul an arbitral award issued without the vote of one of the arbitrators.
In this case, due to a disagreement between two arbitrators and the abstention of the remaining arbitrator’s vote, the presiding arbitrator decided, based on Article 24, §1 of the Arbitration Law and Article 15.2 of the arbitration chamber’s regulations, to give preference to their own vote (casting vote). However, for the TJSP, abstention from voting cannot be considered as a qualitative disagreement capable of legitimizing the casting vote.
Furthermore, the TJSP analogously and supplementally stated that an arbitrator must decide due to the non-avoidance of the Judiciary, a constitutional principle that also refers to arbitral judgments. Thus, in an expansive interpretation of Article 21, §2 of the Arbitration Law, the court decided to annul the debated decision.
(São Paulo Court of Justice, Civil Appeal No. 1094661-81.2019.8.26.0100, Judge Cesar Ciampolini, 1st Chamber for Business Law, Decided on 05/24/2023)
STJ Rules that Replacement of Cash Attachment with Judicial Guarantee Insurance is Possible Without Creditor’s Agreement
The Third Panel of the Superior Court of Justice (STJ) upheld a decision of the São Paulo Court of Justice (TJSP) that authorized the replacement of cash attachment with the presentation of judicial guarantee in an enforcement action, even without the creditor’s agreement.
The issue concerned the authorization for replacing cash attachment with the presentation of judicial insurance in an enforcement action. The replacement was granted at first instance, on the grounds that this measure is allowed for the debtor, even without the creditor’s acceptance, provided that an additional 30% is added to the debt amount. Rapporteur Minister Nancy Andrighi emphasized that Article 835, §2 of the Code of Civil Procedure (CPC) equated bank guarantees and judicial guarantee insurance to cash. Thus, the creditor could only reject the substitution of cash with these guarantees in case of insufficiency, formal defect, or inadequacy of the offered judicial guarantee insurance.
The STJ’s decision holds significant importance for the legal landscape, as it sets an important precedent regarding the possibility of substituting cash attachment with judicial guarantee, even without the creditor’s consent, as long as the established legal requirements are met.
(Superior Court of Justice, Special Appeal No. 2,034,482/SP, Rapporteur Minister Nancy Andrighi, Third Panel, Decided on 03/21/2023)
STJ Clears Bovespa of Responsibility for Irregular Sale of Stocks by Brokerage
The Third Panel of the Superior Court of Justice (STJ) overturned a decision of the Rio de Janeiro Court of Justice (TJRJ) to absolve Bovespa from compensating an investor for an irregular sale of stocks intermediated by a brokerage.
In the case in question, the stocks were sold through the presentation of a forged power of attorney to the brokerage, which led the investor to seek compensation from Bovespa. Both at first instance and on appeal, it was considered that there was a consumer relationship and Bovespa was ordered to compensate the investor.
However, the Third Panel of the STJ emphasized that there is no consumer relationship between investors and Bovespa. Bovespa’s relationship is established with brokerages and is of a purely inter-business nature. Additionally, Rapporteur Minister Nancy Andrighi pointed out that, according to CMN Resolutions 1,655/1989 and 1,656/1989, the brokerage must verify the legitimacy of the stockholder’s power of attorney, and this responsibility does not fall on Bovespa.
With this decision, the Third Panel of the STJ relieved Bovespa of the obligation to compensate the investor, making it clear that the responsibility for verifying the legitimacy of operations lies with the brokerages, as stipulated by the current regulatory norms.
(Superior Court of Justice, Special Appeal No. 1,646,261/RJ, Rapporteur Minister Nancy Andrighi, Third Panel, Decided on 02/07/2023)
STJ Rules that Remunerative Interest Doesn’t Apply to Delay in Judicial Deposit Refund
The Third Panel of the Superior Court of Justice (STJ) ruled that the imposition of remunerative interest on an amount that remained judicially deposited for an extended period is not applicable, as such interest is intended to compensate for borrowed capital and, in general, should be established by agreement between the parties.
The judicial deposit in question was made in 1973 when the currency in use was the Cruzeiro, and the amount remained deposited for nearly 50 years. In this context, the holder of the credit brought an action against the bank for the refund of the amount with the imposition of monetary correction, moratory interest, and remunerative interest. The Court of Justice of Pará (TJPA) granted the request for the imposition of moratory interest and monetary correction until the actual payment date of the debt but rejected the imposition of remunerative interest, a decision that was upheld by the STJ.
(Superior Court of Justice, Special Appeal No. 1,809,207/PA, Rapporteur Minister Marco Aurélio Belizze, Third Panel, Decided on 10/18/2022)