The STJ is reopening the debate on revenue garnishment in civil enforcement proceedings through Special Appeal No. 2.209.895/SP. The discussion addresses the application of this measure when other enforcement options have not been exhausted, particularly in cases involving companies facing financial hardship. The STJ’s decision could redefine the boundaries of garnishment, balancing enforcement with the preservation of business operations. Read more in the opinion article by attorney Murilo Soares.

The Superior Court of Justice (STJ), by admitting Special Appeal No. 2.209.895/SP as a representative case of controversy, rekindles the debate over the garnishment of company revenue in civil executions. The topic, long known to legal professionals, remains sensitive because it involves balancing the effectiveness of enforcement with the preservation of business activities.

At the core of the controversy is whether it is permissible to apply revenue garnishment even when other forms of asset seizure have not been fully attempted. The Code of Civil Procedure (CPC), in setting the preferential order for asset seizure (Art. 835), places the garnishment of a debtor company’s revenue in tenth place.

However, the question in this case is whether that order can be relaxed, especially in situations involving financially distressed companies whose continued operations may be at risk. The interpretation to be established by the STJ, as it analyzes this appeal as a representative case, could define the boundaries and applicability of such a measure.

The special appeal challenges a decision that authorized the garnishment of a company’s revenue without first genuinely attempting to locate other assets of the debtor company.

Legal limits and requirements for revenue garnishment

For revenue garnishment to be permissible, the creditor must first attempt other means of locating assets, specifically to avoid making the execution process overly burdensome for the debtor. Moreover, it is not enough to exhaust attempts to locate the assets listed in items I to IX of Art. 835 of the CPC—additional requirements must also be met:

• Proof that there are no other assets capable of securing the execution or that such assets are difficult to sell;
• Appointment of an administrator, responsible for presenting management and payment methods; and
• Establishment of a percentage that does not render the company’s economic activity unfeasible (principle of least onerous impact).

In this context, it is essential to highlight the teachings of Humberto Theodoro Junior:

Garnishing a percentage of a company’s revenue ranks tenth in the preferential order under Art. 835. Therefore, if there are unencumbered assets of higher preference available, it is not appropriate to resort to seizing company revenue, which, without greater care, could compromise its working capital and hinder the continuity of its normal economic activity. For this reason, appointing an administrator-depositary is necessary to draw up a payment plan to be reviewed and approved by the enforcement judge. This avoids compromising the solvency of the debtor company.
(…)
In other words, garnishment of revenue—even partial—cannot be indiscriminate and should never be carried out through a mere judicial order requiring a set percentage to be deposited in a judicial account, “without considering that, without working capital to maintain operations, the company or establishment cannot possibly survive in the market.”

It is important to note that revenue garnishment has often been granted repeatedly without observing the proper procedure outlined in Art. 866 of the Code of Civil Procedure.

In other words, judges frequently authorize a fixed percentage of the debtor company’s revenue to be garnished without first conducting a financial analysis by a court-appointed administrator. This, to some extent, violates the requirement that the measure must be based on a detailed analysis of the company’s actual payment capacity in order to avoid jeopardizing its regular operations.

Failure to comply with the legal rule not only violates it but also endangers the company’s ongoing operations and even the recovery of the credit sought in the enforcement action.

The relevant legal provision clearly states that revenue garnishment must be carried out with great caution and in a way that does not hinder the debtor company’s activities. While it is legally permissible, it must not be applied in a way that places the regular commercial operations of the targeted company at risk.

The impact of choosing Special Appeal No. 2.209.895/SP as a representative case will be immediate and far-reaching, providing legal certainty for all parties involved in enforcement proceedings, and especially guiding national courts on how to approach similar cases.

Case law reinforces caution in garnishment

Even though enforcement should proceed with the creditor’s interest in mind, judges, in the exercise of their jurisdiction, must also uphold the constitutional and fundamental rights of the debtor. Therefore, there is no room for interpretations that contradict the law or harm the debtor based solely on formal judicial procedures for satisfying the execution.

Thus, when revenue garnishment is enforced, a clear conflict arises: the creditor has the right to satisfy their claim through garnishment, while the debtor invokes the principle of least onerous impact to prevent judicial seizure of assets that could disrupt their business operations.

The principle of preserving the social function of the company, as enshrined in Article 170 of the Federal Constitution, is one of the main reasons that restrict the garnishment of revenue. Therefore, considering the principle of least onerous impact and the preservation of the company’s social role, the interpretation of the governing rules leads to the conclusion that revenue garnishment should be used only as a last resort when there are no other assets that could satisfy the claim. This was the recent position taken by the São Paulo State Court of Justice:

ENFORCEMENT OF EXTRAJUDICIAL INSTRUMENT – CLAIMS OF EXCESSIVE GARNISHMENT AND REQUEST TO LIFT REVENUE GARNISHMENT – GRANTED

Given that there are real estate assets already garnished in the enforcement proceedings, and there is no concrete proof of their insufficiency to satisfy the debt, the request to reinforce the garnishment by targeting the company’s revenue is premature, especially since this type of garnishment is an exceptional measure. Decision overturned to remove the revenue garnishment – Appeal granted.
(TJ-SP – Interlocutory Appeal: 2115747-90.2025.8.26.0000, Jaboticabal, Rapporteur: Walter Fonseca, Judgment Date: 06/04/2025, 11th Chamber of Private Law, Publication Date: 06/04/2025)

Therefore, the STJ’s jurisprudence should make it clear that revenue garnishment cannot be decided automatically or generically, but requires a detailed assessment of the company’s financial condition and the potential impact of such a measure on its ability to recover.

In conclusion, the designation of Special Appeal No. 2.209.895/SP as a representative case marks a pivotal moment for potentially redefining the interpretation and application of revenue garnishment within Brazil’s legal system. The Superior Court will have the opportunity to reaffirm the principles laid out in Theme No. 769/STJ, addressing its applicability both in tax enforcement cases governed by Law No. 6.830/80 and in private law matters.

*Opinion Article by Murilo Soares, attorney at Granito Boneli Advogados, specialist in Civil Procedural Law, and Law graduate from PUC-Campinas.
This text does not necessarily reflect the opinion of the Portal.

Source: https://economicnewsbrasil.com.br/2025/07/04/penhora-de-faturamento-stj/