The theory of substantial performance, which derives from the general principles of contract law, does not apply in family law, nor may it be used to resolve disputes relating to alimony.
This was the majority understanding of the Fourth Panel of the Superior Court of Justice (STJ), in denying a writ of habeas corpus against an act of the Court of Justice of Minas Gerais (TJMG) which ordered the enforcement of the civil imprisonment of a debtor of alimony, even after partial settlement of the debt.
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In light of the payment of almost the entire debt, the trial court judge ordered the release of the debtor. However, the Minas Gerais court ordered the enforcement of the imprisonment, based on the case law of the STJ.
In the terms of the dissenting vote of Justice Luis Felipe Salomão, reporting justice of the habeas corpus judged by the Fourth Panel, it would be possible to apply the theory of substantial performance within the scope of family law. According to him, the theory usually applies in the termination of contracts when there is substantial payment by the debtor, leaving a minimal “irrelevant” portion of the debt.
Alimony – the existential minimum
Nevertheless, the understanding of the panel followed the divergent vote of Justice Antonio Carlos Ferreira, who recalled that the case law of the STJ is settled in the sense that partial payment of the alimony debt does not rule out the possibility of civil imprisonment of the debtor.
According to the justice, the theory, although not codified in the Brazilian legal system, has been incorporated into it “by force of the practical application of principles typical of legal relationships of a contractual nature, such as the social function of the contract (Article 421 of the Civil Code of 2002), objective good faith (Article 422), the prohibition of the abuse of rights (Article 187) and of unjust enrichment (Article 884).”
Antonio Carlos Ferreira stated that alimony imposed by judicial decision, even if arising from an agreement entered into between the debtor and the creditor, reflects “the existential minimum of the person entitled to support, such that the subtraction of any portion of that amount may give rise to severe harm to their very subsistence.”
The justice also observed that the legal system has mechanisms by which the debtor may justify any partial default on the obligation (Article 528 of the Code of Civil Procedure of 2015 – CPC/2015) and that habeas corpus is not the appropriate means for discussing any potential irrelevance of the portion paid, a matter which, if applicable, would be for the ordinary instances to define.
The number of this case is not disclosed due to judicial secrecy.
Source: STJ
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