Content published in the electronic magazine Consultor Jurídico (ConJur):
www.conjur.com.br/2019-jul-14/thais-monteiro-penhora-salario-contratos-locacao-imovel
The STJ’s decision on the attachment of salary to pay off a rental debt was coherent
By Thaís Monteiro
In a recent decision, the Superior Court of Justice authorized the attachment of 15% of a debtor’s salary for the settlement of a rental debt. In this specific case, besides the debtor having a salary income considered high, of around R$ 29 thousand, he incurred the debt through the lease of a residential property.
It is known that the current Code of Civil Procedure regulates the enforcement proceeding, whose object is to ensure the satisfaction of the creditor, in receiving sums or assets, in the face of a debt incurred by the debtor.
It is certain that the innovations brought by the 2015 Code of Civil Procedure are numerous. Among them, the fundamental precepts of civil procedure stand out, which govern procedural rules in accordance with the Federal Constitution of 1988, in order to attain the constitutional vision of the procedure.
Article 833 of the Code of Civil Procedure contains the general rule of non-attachability, enumerating assets that, as a rule, cannot be attached, such as earnings, salaries, remunerations, retirement proceeds, and pensions, among others.
This rule of non-attachability is necessary to guarantee the debtor’s constitutional rights, with the aim of safeguarding, in a broad sense, the dignity of the human person, provided for in article 5 of the Federal Constitution, preserving his subsistence and that of his family.
It is worth remembering that the rule contained in this same article does not aim to protect the debtor so that he may remain in default, rendering his assets non-attachable, but rather to guarantee the protection of his constitutional rights.
However, the operators of the Law created the principle of the relativization of non-attachability, provided for in paragraph 2 of this same article, which guarantees the possibility of attaching salary for the payment of alimony, as well as amounts that exceed 50 monthly minimum wages.
Through an adjudication, the STJ mitigated this precept, consolidating the possibility of attaching the debtor’s salary funds for the payment of a rental debt, provided that the minimum to guarantee his sustenance is preserved.
In the ruling, it declared it unjust for the landlord of a residential property to bear the expenses of the defaulting tenant, since the satisfaction of lease credits forms part of the normal family budget of any citizen, being settled through his monthly remuneration.
Moreover, had the non-attachability been maintained, this would bring excessive harm to social relations, in view of the non-granting of credit to ordinary tenants, who always live on their limited salaries.
Analyzing the principle of the relativization of the non-attachability of salaries, while also respecting the constitutional precepts of reasonableness and proportionality, the decision was coherent, because it was confirmed that the non-attachability of assets is not intended for the protection of debtors, but rather to safeguard their constitutional rights, inherent to ordinary citizens.
Finally, it never hurts to remember that the law guarantees the satisfaction of the creditor, but not at any cost. However, in cases of lease for housing, the landlord/creditor cannot bear the burden of a frustrated transaction, insofar as the tenant/debtor fails to cover the expenses incident upon the leased property. As stated earlier, the credit of a rental nature forms part of the normal family budget of any citizen, which is why the landlord himself commonly depends on the subsidies of the rent to make up his monthly income, that is, the subsistence of all those involved in the contractual relationship entered into must be preserved, thereby ensuring the constitutional rights inherent to both parties.
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