In enforcement proceedings—whether related to judicial enforcement (compliance with a judgment) or extrajudicial enforcement (enforcement of an extrajudicial title)—the Brazilian Code of Civil Procedure, together with the Federal Constitution, provides the debtor with legal instruments aimed at reducing the burden of asset seizure. These instruments ensure that the process respects both the order of preference for asset seizure, established under Article 835 of the CPC, the principle of least onerous means, found in Article 805 of the CPC, and the principle of human dignity, enshrined in Article 1, III of the Constitution.
When properly applied, these articles (805 and 835 of the CPC, and Article 1, III of the Constitution) aim to protect the debtor’s business activity and essential assets, preventing disproportionate sacrifices.
Although the goal in enforcement proceedings is to ensure the creditor receives payment, the enforcement acts must be carried out proportionately and within the debtor’s financial capacity. Additionally, prior to granting a request for asset seizure, the judge must also examine Article 833 of the CPC, which lists non-seizable assets.
This provision cannot be overlooked under any circumstance, as it ensures that enforcement proceeds without violating the principle of human dignity, which is constitutionally protected.
Order of Preference in Enforcement Proceedings
Article 835 of the CPC outlines a preferred order for enforcing seizure measures in enforcement actions. The hierarchy begins with cash (in hand or in bank accounts or investments), followed by public securities, vehicles, real estate, personal property, livestock, business assets, and lastly, other rights.
While this list is not strictly exhaustive, it is essential that the judge, when evaluating a seizure request from the creditor, verifies whether less burdensome alternatives have already been considered or attempted.
The Superior Court of Justice (STJ) has firmly established that the order of preference set out in Article 835 is not absolute. The judge must assess whether the enforcement measure would unduly harm the debtor.
According to the STJ, the order of seizure priority in Article 835 may be mitigated based on the circumstances of each case. Moreover, in accordance with Article 805, sole paragraph of the CPC, the debtor who claims that the measure is overly burdensome must propose more effective and less onerous alternatives, otherwise the enforcement acts already determined will remain in effect.
Therefore, if the debtor believes that the seizure request is harmful, they must justify why the measure is burdensome and indicate an alternative asset that can satisfy the enforced claim.
Asset Seizure Requests and Asset Investigations
According to the São Paulo State Court of Justice, a creditor must first request an asset search via the Sisbajud system—which blocks funds in bank accounts—before seeking the seizure of real estate assets.
Hence, Article 835 of the CPC not only ensures that seizures are executed properly and with minimal harm to the debtor but also safeguards property rights, allowing real estate to be seized only after exhausting attempts to seize cash or movable assets.
In addition, case law from the Federal District Court of Justice, specifically decision 1385348/2021 (ruled on November 10, 2021), emphasized that the order of seizure in Article 835 must be adopted as a rule, not simply as a list of attachable assets. The ruling highlighted that paragraph 1 allows flexibility only if the debtor proposes a more effective and less burdensome alternative measure.
Debtors Are Guaranteed Enforcement by Less Burdensome Means
The principle of least onerous means, found in Article 805 of the CPC, guarantees that enforcement proceedings are conducted in a way that minimizes harm to the debtor without compromising the enforcement’s effectiveness.
Thus, whenever the creditor requests seizure of a debtor’s asset, the judge must carefully assess whether the requested enforcement action violates the principles of reasonableness, proportionality, and least onerous means.
Moreover, Article 833 of the CPC ensures that essential assets for the debtor’s subsistence are protected from seizure.
Taken together, Articles 805, 833, and 835 of the CPC, along with Article 1, III of the Constitution, provide a legal foundation that ensures enforcement is less burdensome for the debtor while still being effective in satisfying the creditor’s claim.