STJ diverges on the application of the SELIC rate in the corrections of civil debts.

Last month, the Special Court of the Superior Court of Justice (STJ) resumed the judgment of REsp nº 1795982/SP on the use of the Selic rate to correct civil debts.

In the beginning, the update of the value of an indemnity resulting from a traffic accident involving a bus company and an individual was discussed. At the time, the sentence determined the payment of moral damages in the amount of R$ 20,000.00 (twenty thousand reais), corrected in accordance with the Practice Table of the Court of Justice since the arbitration and default interest of 1%. In the event of correction of the value by Selic, the compensation would be R$ 37,000.00 (thirty-seven thousand reais). In turn, if the index of the Court of the Court of Justice of the State of São Paulo is applied, plus monetary interest of 1% per month, the compensation would be R$ 51,000.00 (fifty-one thousand reais).

After the Court of Justice dismissed the bus company’s appeal claiming the correction of the compensation by the Selic rate, the company appealed to the STJ. In the appeal, the discussion revolves around what interpretation should be given to article 406 of the Civil Code, which provides: when not provided for in a contract or determined by law, interest on arrears “shall be set according to the rate in force for arrears in the payment of taxes due to the National Treasury”.

The divergence is whether the text of article 406 of the Civil Code refers to the Selic rate, used to update federal taxes, or to the default interest of 1% per month provided for in article 161 of the National Tax Code (CTN).

Of the 15 (fifteen) Ministers of the Special Court, to date, only 4 (four) have pronounced:

1. Rapporteur Minister Luís Felipe Salomão was against the application of the Selic rate. Under the terms of the Minister’s vote, as it is a Central Bank instrument to control inflation, the Selic rate is applied to interfere with future inflation and not to reflect past inflation. Therefore, the rate would be inadequate to serve as an index of monetary correction;

2. Minister Raul Araújo opened a divergence. Under the terms of the vote, there is no reason to impose on the debtor of civil debts an interest rate of 1% per month, which, according to him, would be “very high”. The Minister also stated that the Civil Code does not make any specific reference to article 161 of the CTN;

3. Minister Humberto Martins opposed the application of the Selic and followed the vote of Rapporteur Minister Luís Felipe Salomão (vote in advance, but not yet available); It is

4. Minister João Otávio de Noronha defended the application of the Selic as a correction rate (advance vote, but not yet made available).

Thus, the score is tied. The case will be resumed after the return of the process with the vote of Minister Benedito Gonçalves, which still does not have a deadline to occur.

The final judgment is undoubtedly essential to provide greater legal certainty. Although the judgment will not take place on a repetitive appeal, which would make the decision immediately applicable to demands of the same nature, its result will represent an important precedent and will allow the pacification of the issue in the Judiciary.

This material is merely informative and should not be used in isolation for decision-making. Specific legal advice can be provided by one of our lawyers. Copyrights are reserved to Kestener & Vieira Advogados.