The Court of Justice of São Paulo (TJ/SP) ruled that the debtor will continue to be subject to the payment of late payment charges – such as interest, fines and monetary correction – even after making a court deposit, if this deposit was made solely for the purpose of guaranteeing the court’s judgment. The decision was handed down in a unanimous judgment of the 15th Private Law Chamber, in an appeal filed in the context of enforcement of a judgment filed against Banco do Brasil.
In the specific case, although the bank had deposited the amount of R$ 111,486.40 in court, it recognized only the amount of R$ 51,951.50 as undisputed. Claiming that the total amount deposited would already be sufficient to suspend the effects of the late payment, the bank sought to eliminate the incidence of charges on the balance that it still considered controversial. The TJ/SP, however, rejected this thesis. The rapporteur of the case, Justice Achile Alesina, based his vote on the understanding consolidated by the Superior Court of Justice in Repetitive Theme 677, which establishes that the judicial deposit made exclusively to guarantee the judgment does not have a discharging effect, that is, it does not extinguish the obligation and does not prevent the continued incidence of late payment charges. He emphasized that, if the subjective element of the intention to pay (animus solvendi) is absent, the deposit cannot be considered as fulfillment of the obligation.
The Court also rejected the argument that it would be necessary to wait for the final judgment of the repetitive precedent of the STJ for its application. As pointed out in the vote, the binding jurisprudence of the Superior Court of Justice, when established in the context of a repetitive appeal, has immediate effect, being applicable to ongoing proceedings, regardless of modulation of effects. With this, the decision of the 40th Civil Court of the Central Court of the District of São Paulo was upheld, which recognized the incidence of late payment charges on the remaining balance of the debt, reinforcing the guideline that, for the effective extinction of the obligation, it is necessary to pay the full amount due and not just make a judicial deposit for the purpose of merely guaranteeing.
Aline Rossi | aline@nascimentomourao.adv.br
Coordinating Partner of the Strategic Litigation area, specialist in Civil Procedural Law and Contracts.
Natália Amaral | natalia.amaral@nascimentomourao.adv.br
Partner Lawyer in the Strategic Litigation area, specialist in Civil Procedural Law and Digital Law.
