The Fourth Panel of the Superior Court of Justice (STJ) granted a bank’s special appeal in order to set aside the recognition of supressio in an enforcement proceeding that had been suspended, for a long period, because no assets of the debtor had been found.
With the decision, the panel determined the application of interest and monetary correction, in the manner established in the judgment, throughout the entire period of the existence of the debt, until the date of effective payment.
At the origin, the bank filed a monitory action, based on a revolving credit agreement, against a company and its partners. The court ordered the debtors to pay the amount claimed by the financial institution.
At the enforcement stage, the Court of Justice of São Paulo (TJSP) set aside the occurrence of intercurrent prescription, but, based on the institute of supressio, decided that neither interest nor monetary correction would be computed on the debt during the period in which the proceedings were stayed because no assets had been found in the name of the parties subject to enforcement.
For the local court, the bank would have benefited from the application of the charges while it remained inert, without taking measures to find the debtors’ assets and allow the regular processing of the enforcement.
Supressio requires analysis of the party’s good faith
The reporting justice emphasized that, although the institute of supressio has its basis in the need for the stabilization of legal relationships, it is not to be confused with the extinction of rights that occurs in prescription or in decadence.
The justice stated that, for the recognition of supressio, it is necessary to ascertain the good faith and the duty of loyalty and trust, unlike what occurs in prescription and decadence, in which the mere passage of time entails the extinction of the right. Supressio, therefore, requires an analysis of the creditor’s omission and also of its effect on the debtor’s expectation.
According to the magistrate, supressio is the loss of the possibility of exercising a right, due to its non-exercise for a certain period, since this generates in the opposing party the legitimate expectation that it will no longer be demanded.
As explained, the omission “gains legal relevance by causing in the other party the conviction that the subjective right will no longer be exercised”.
Absence of assets did not generate a legitimate expectation in the debtors
In the case under trial, the reporting justice observed that it is not possible to apply the institute of supressio, since the absence of assets in the enforcement proceeding cannot have led the defendant to the legitimate expectation that he would no longer be subject to enforcement, nor be considered a relevant omission for the extinction of the right.
“It cannot be overlooked that the appellant’s right was effectively exercised when filing the action and when the enforcement of the final and unappealable judgment was initiated”, he stated, adding that, although proceedings are subject to delays, “such circumstances cannot be considered truly significant, so as to qualify an omission as relevant for the extinction of the right”.
Read also:
Income from a debtor’s asset is subject to attachment
The significant element for the suspension of the proceedings and the postponement of the realization of the right recognized in the judgment—the reporting justice concluded—was not the creditor’s omission, but the absence of assets for the fulfillment of the obligation.
Source: STJ
← Back to blog