The Second Section of the Superior Court of Justice (STJ), under the special appeals system of repetitive cases (Theme 1,279), has ruled that “in repossession actions involving fiduciary sale of goods, the five-day deadline to repay the full debt, as established in Article 3, Paragraph 1, of Decree-Law 911/1969, begins on the date of the execution of the injunction.”
With the thesis now established, all special appeals and interlocutory appeals that had been suspended awaiting this qualified precedent may proceed. This interpretation must be followed by courts across the country when analyzing similar cases.
Participating in the trial as amici curiae were the Center for Advanced Procedural Studies (Ceapro) and the Brazilian Federation of Banks (Febraban).
The ruling settles longstanding divergences regarding the starting point of the grace period to cure default after repossession. The reporting judge for the repetitive appeals, Justice Antonio Carlos Ferreira, emphasized that the STJ has consistently ruled that the deadline begins from the date the injunction is executed. He noted that this interpretation of the legal provision ensures greater legal certainty and speeds up the process.
Resolution of the Apparent Normative Conflict Lies in the Principle of Specialty
The justice explained that the original wording of Paragraph 1, Article 3 of Decree-Law 911/1969 stated that “once the petition is granted and the injunction executed, the defendant shall be summoned to either file a defense within three days or, if 40% of the financed amount has already been paid, request to cure the default.” According to the reporting judge, this model made it clear that the summons occurred only after the injunction had been executed, and the defense period followed the general rule from the Code of Civil Procedure (CPC), starting from the moment the summons was recorded in the case file.
However, according to Antonio Carlos Ferreira, Law 10.931/2004 established that ownership and possession of the asset would be consolidated in favor of the creditor five days after the injunction is executed. “The current legal procedure, aimed at ensuring the effectiveness of the fiduciary guarantee, allows the debtor to pay the full debt within five days following the execution of the injunction, with the asset being repossessed and delivered to the creditor. If the debtor does so, the asset will be returned free of encumbrances, as provided in Paragraph 2 of the same legal provision,” he stated.
According to the judge, this legal framework constitutes a special rule in relation to Article 230 of the CPC, and it prevails under the principle of specialty. He emphasized that this interpretation is reinforced by the express determination that the general rules of the CPC are to be applied only in a supplementary manner, as per Article 231, and only when compatible.
The reporting judge added that the special rule prevails precisely because it contains more specific provisions, overriding the general rule in areas where they are incompatible. “The apparent normative conflict is resolved by applying the rule that contains special elements, thereby excluding the application of the general rule in favor of the specific criteria set by the special rule,” he concluded.
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