By: Vitor Antony Ferrari, Ivan Kubala
Brazil’s legislation establishes a list of goods considered unseizable, i.e., that cannot be used to satisfy credit charged judicially.
Examples include real estate considered to be family property, salary, retirement income, pensions, and amounts of up to 40 minimum wages deposited in savings account, and it is certain that for each of these hypotheses there are one or more reasons for establishing such protection.
In the case of amounts deposited in a savings account, legal protection is supported by the idea that savings are used as a reserve for emergencies, aimed at sustaining its holder, so as to ensure the right to a dignified life, broadly supported by the Federal Constitution.
However, there are exceptions provided for in the legislation itself, as in the case where the credit charged consists of food supply. In this case, it is possible to pledge amounts deposited in a savings account, thus benefiting the creditor.
On the other hand, a position has become common that extends this protection to the values of up to 40 minimum wages in financial investments or deposited in current accounts[1]. That is, an exception that benefits the debtor.
This is because it is not uncommon for the current account or financial investment to be used for the same purpose as the savings account, especially because it is known that savings account earnings are considerably lower. In this case, the same legal protection assumption prevails, which legitimizes the extended application of unseizability.
Therefore, this understanding is in keeping with the understanding that the unseizability rules can be extended to suit the protection of fundamental rights, such as the right to housing, health or human dignity.
However, although praiseworthy, this position must always be applied with consideration, for example, taking into account whether the financial assets are intended for the holder’s savings, so as not to become an undiscriminated investment tool used by creditors to evade their obligations.
[1] AgInt in REsp 1812780/SC; Bill of Review 2130230-67.2021.8.26.0000 (TJSP)