The Superior Court of Justice (STJ) has reopened the debate over revenue garnishment in civil enforcement proceedings through Special Appeal No. 2,209,895/SP. The case addresses whether this enforcement measure may be applied when other alternatives have not yet been exhausted, especially in relation to companies facing financial hardship. The STJ’s decision may redefine the limits of garnishment, balancing enforcement with the preservation of business operations. Read more in the opinion article by attorney Murilo Soares.
By admitting Special Appeal No. 2,209,895/SP as a representative case of controversy, the STJ rekindles discussion on garnishment of company revenue in civil executions. Although long debated among legal scholars, the matter remains sensitive, as it involves balancing the effectiveness of enforcement with the continuity of business activities.
The core issue lies in whether garnishment of a company’s revenue may be ordered even before all other asset attachment options have been exhausted. Article 835 of the Brazilian Code of Civil Procedure (CPC) provides a list of preferred assets for attachment, placing revenue garnishment tenth in priority.
However, the question now is whether that order of preference may be flexibly interpreted, especially in cases where companies are financially distressed, and their ongoing operations may be at risk. The position the STJ adopts—by treating this as a representative case—could set new limits on the applicability of this enforcement measure.
This appeal challenges a decision that authorized revenue garnishment without first making a serious attempt to locate other seizable assets owned by the debtor company.
Legal limits and requirements for revenue garnishment
To justify garnishment of company revenue, the creditor must first attempt to locate other attachable assets, in order to prevent excessive burden on the debtor. In addition to exhausting the options listed in items I through IX of Article 835 of the CPC, the following requirements must also be met:
- Proof of the absence of other assets capable of securing enforcement, or proof that such assets are difficult to liquidate;
- Appointment of a court administrator, responsible for proposing methods of administration and payment;
- Determination of a percentage that does not compromise the company’s ability to operate (principle of least burden).
In this context, it is important to highlight the teachings of Humberto Theodoro Junior:
“Revenue garnishment ranks tenth in the order of preference under Article 835. Therefore, if there are available assets of higher preference, garnishing a company’s income is not justified, as it could affect working capital and jeopardize normal economic activity. Thus, it is mandatory to appoint a custodian-administrator to present a payment plan for judicial approval. This helps prevent compromising the solvency of the debtor company.”
“In other words, even partial garnishment of revenue cannot be ordered indiscriminately or via a mere judicial command to withhold a certain percentage into court accounts—without realizing that, without working capital to keep its operations running, a company cannot survive in the market.”
It is important to note that revenue garnishment is often approved without observing the procedure established in Article 866 of the CPC.
That is, judges frequently authorize a fixed percentage of a debtor company’s revenue to be garnished without a prior accounting analysis by a court-appointed administrator—which goes against the requirement that this measure be based on a detailed assessment of the company’s real ability to pay without disrupting normal operations.
Failure to comply with this legal standard not only violates the law but can also jeopardize the continuity of business activities and hinder the credit recovery process itself.
The relevant legal provision is clear: revenue garnishment must be applied cautiously, in a manner that does not obstruct the debtor company’s operations. While this type of enforcement is legally permissible, it must not be used in a way that places the company’s business viability at risk.
Impact of admitting Special Appeal No. 2,209,895/SP
The decision to treat Special Appeal No. 2,209,895/SP as a representative case of controversy will have immediate and wide-ranging effects, providing legal certainty for all parties involved in enforcement proceedings, and offering clear guidance to courts across Brazil on how to handle similar cases.
Case law reinforces caution in revenue garnishment
While enforcement proceedings are meant to protect creditors’ interests, judges must also ensure the protection of the debtor’s constitutional and fundamental rights. Therefore, interpretations that disregard the law or harm the debtor’s position are not permissible based solely on the creditor’s procedural entitlement.
As such, revenue garnishment inevitably leads to conflict: the creditor has a right to collect their debt through enforcement, but the debtor invokes the principle of least onerous means to avoid measures that could cripple the business.
The principle of preserving the social function of the company, enshrined in Article 170 of the Brazilian Federal Constitution, is one of the main reasons for restricting revenue garnishment. Interpreting the applicable legal standards in light of this principle suggests that revenue garnishment should be reserved as a last resort, only when no other assets are available to satisfy the debt. This understanding was recently affirmed by the São Paulo State Court of Justice:
Enforcement of extrajudicial title – Claims of excessive garnishment and request to reverse revenue garnishment – Grounds for reversal
Since real estate assets have already been seized in the enforcement case, and there is no clear evidence that they are insufficient to cover the debt, the request to reinforce the garnishment through revenue seizure is premature—especially considering that this is an exceptional measure. The decision was reversed to lift the revenue garnishment – Appeal granted.
(São Paulo Court of Justice – Case: 2115747-90.2025.8.26.0000, Jaboticabal, Judge: Walter Fonseca, Judgment Date: 06/04/2025, 11th Civil Chamber, Publication Date: 06/04/2025)
Therefore, the STJ’s jurisprudence must clarify that revenue garnishment cannot be ordered automatically or generically, and requires a detailed analysis of the company’s financial condition and of the potential impact on its recovery capability.
Final remarks
In conclusion, the decision to admit Special Appeal No. 2,209,895/SP as a representative case of controversy marks a turning point in the interpretation and application of revenue garnishment within the Brazilian legal system. The Superior Court now has the opportunity to reaffirm the foundations of STJ Theme No. 769, addressing its applicability not only in tax enforcement proceedings (under Law No. 6,830/80), but also in private civil enforcement cases.