The action for the qualification of successors, although essentially intended for the legitimation of parties, allows for the incidental recognition of fraud against enforcement (fraude à execução), whether because fraud is a matter of public order and, in this way, may be declared ex officio by the judge, or when the said matter is included in the cause of action, there being, in these circumstances, no judgment beyond the request.
Based on this understanding, the Third Panel of the Superior Court of Justice (STJ) rejected the appeal of a group of heirs against a decision of the Court of Justice of Santa Catarina that recognized fraud against enforcement and qualified, in the succession, the holders of credits to be received from the deceased.
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According to the proceedings, one day before dying, the debtor alienated all of his assets to his children, which made it impossible to pay an indemnification for moral damages in the amount of 400 minimum wages that had been established 18 months earlier by the Courts.
In the appeal to the STJ, the heirs argued, among other arguments, that the recognition of the fraud would have exceeded what was requested by the creditors when they qualified in the succession. According to the reporting justice for the appeal, Justice Nancy Andrighi, there was no judgment beyond the request, since the cause of action of the qualification of the creditors was precisely the fraud committed by the debtor before dying.
“It is concluded, therefore, that there is, in this hypothesis, no judgment beyond the request formulated by the appellees, the existence of fraud against enforcement having been recognized — a matter of public order that relaxes the rigor of the dispositive principle and of the rule of congruence between request and judgment, by means of a regular adversarial process — which is why there can be no question of a violation,” the reporting justice explained.
Another point raised by the heirs was that the matter of fraud against enforcement could not be examined in the action for the qualification of successors, since it had already been raised previously in the enforcement of the indemnification brought against the deceased — an occasion on which it was denied for insufficiency of evidence. According to the reporting justice, the allegation of preclusion of the raising of fraud is inadmissible.
“The appellants themselves argue that the qualification action should be ruled unfounded and that they could not be liable for the debt because there were no other assets besides those alienated on the eve of the death, and the appellants cannot now benefit from their own turpitude, intending to avail themselves of the decision rendered in the enforcement that is based on a factual premise which they themselves know to be untrue,” the justice said.
In addition, she added that “enforcement is a procedural phase marked by restrictions in the scope of evidence, such that it would be a true contradiction to admit the occurrence of the phenomena of preclusion or res judicata in the satisfactory phase when the controversial matter could, as is the case, be raised in declaratory proceedings, with exhaustive cognition and instruction.”
Source: Press office STJ
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