The death of the borrower does not extinguish a debt contracted by them, with payment to be made by their estate or, if the partition has already been carried out, by their heirs, up to the limit of the value transferred.
According to the justices of the Third Panel of the Superior Court of Justice (STJ), Law No. 8,112/90 repealed Law No. 1,046/50 and, therefore, the provision that guaranteed this hypothesis of extinguishment can no longer be applied.
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Death of the borrower does not extinguish the debt
The motion to stay execution was filed by three heirs who alleged the extinguishment of the debt contracted by their deceased mother, arising from payroll-deductible loan agreements.
The judgment upheld the request set forth in the initial petition, recognizing the extinguishment of the debt. However, the Court of Justice of Rio Grande do Sul granted the appeal of the creditor bank, since it held that the inheritance is liable for the debt.
In the special appeal, the heirs argued a violation of Article 16 of Law No. 1,046/50, which provides for the extinguishment of the debt upon death, this provision not having been repealed by virtue of Article 2, paragraph 1, of the Law of Introduction to the Rules of Brazilian Law (LINDB). Furthermore, in the view of the deceased’s children, the inherited property could not be attached, since it serves the family unit and is inhabited by them.
Repeal of the law
The rapporteur of the appeal at the STJ, Justice Nancy Andrighi, stated that in the controversy Law No. 10,820/03 was applied, which governs payroll deduction for employees subject to the Consolidation of Labor Laws (CLT) and for holders of retirement or pension benefits under the General Social Security Regime (RGPS). However, the law does not address the hypothesis of extinguishment of the debt upon the death of the debtor.
She explained that, under the principle of continuity, set forth in Article 2 of the LINDB, except for the legally admitted hypotheses, a law is permanent in nature, remaining in force until another repeals it. Under the terms of paragraph 1 of the provision, a subsequent law repeals the prior one when it expressly so declares (express repeal), when it is incompatible therewith, or when it entirely regulates the matter dealt with by the prior law (tacit repeal).
“It is inferred that Law No. 10,820/03 did not expressly declare Law No. 1,046/50 repealed, so much so that the latter is still listed as formally in force on the electronic page of the Presidency of the Republic,” she said. Nevertheless, the rapporteur reported that the STJ already has precedents to the effect that, following the enactment of Law No. 8,112/90, the rules on payroll deduction set forth in Laws No. 1,046/50 and 2,339/54 are repealed within the scope of the entities and public servants subject to its regime.
“The tacit or indirect abrogation of Law No. 1,046/50 is thus established, insofar as Law No. 8,112/90 entirely dealt with the matter contained therein, removing its force within the legal order. As there is no provision in the repealing law similar to Article 16 of Law No. 1,046/50, there can be no question, from the entry into force of Law No. 8,112/90, of extinguishment of the debt upon the death of the borrower,” she explained.
Thus, the rapporteur stated that, even though it was not made clear whether the borrower was subject to the CLT or to the statutory regime, Article 16 of Law No. 1,046/50 is no longer in force, its text not having been reproduced in the legislation currently in force on the subject.
Family property
With respect to the unattachability of the family property, according to Nancy Andrighi, the Third Panel has already addressed the matter and decided that the acceptance of the inheritance operates personal liability, within the legal limits, for which reason, where the inherited asset cannot be reached, nothing prevents other assets from being liable for the debt.
In the justice’s view, “to remove the personal liability of the heirs on the sole argument of the unattachability of the property would therefore be tantamount to ensuring the heir a patrimonial increase incompatible with the hereditary estate, ultimately resulting in prohibited unjust enrichment.”
Source: STJ
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