By: Vitor Antony Ferrari, Ivan Kubala

Brazilian legislation establishes a list of assets considered unattachable, that is, assets that cannot be used to satisfy a debt collected in court.

Examples include property considered a family asset, salary, retirement income, pensions, and amounts of up to 40 minimum wages deposited in a savings account, and it is certain that for each of these cases there is one or more reasons for establishing such protection.

In the case of amounts deposited in savings accounts, legal protection is based on the idea that savings are used as an emergency reserve, aimed at supporting the account holder, in a way that aims to ensure the right to a dignified life, broadly supported by the Federal Constitution.

However, there are exceptions provided for in the legislation itself, such as in the case where the credit collected consists of alimony payments. In this case, it is possible to seize amounts deposited in a savings account, thus benefiting the creditor.

On the other hand, a position has been established that extends the aforementioned protection to amounts of up to 40 minimum wages found in financial investments or deposited in a current account.[1]. In other words, an exception that benefits the debtor.

This is because it is not uncommon for a checking account or financial investment to be used for the same purpose as a savings account, especially because it is known that the remuneration of the savings account is much lower. In this case, the same basis of legal protection is present, which legitimizes the expansion of the application of the non-attachability.

Therefore, this understanding is in line with the understanding that the rules of non-attachability can be expanded, in order to adapt the protection to fundamental rights, such as: the right to housing, health or human dignity.

However, despite being commendable, this position must always be applied with caution, paying attention to whether the financial assets found are intended for the savings of their holder, for example, so that they do not become an instrument of indiscriminate application and serve as a tool for creditors to evade their obligations.

[1] AgInt in REsp 1812780/SC; Instrument Appeal 2130230-67.2021.8.26.0000 (TJSP)