5/8/2024
The recent changes implemented by Law 14.905/2024 to the Civil Code (Law 10.406/2002) have led to important definitions regarding the rules on monetary correction and the incidence of interest on civil debts.
The previous wording of articles 389 and 406 of the Civil Code contained general provisions concerning the methodology to be applied for monetary correction and default interest in cases where such methods were not legally provided. Historically, this matter has been the subject of various judicial decisions aimed at consolidating the understanding of the applicable rate.
In its most recent ruling on the subject (involving Special Appeals No. 1.081.149-SP and No. 1.795.982-SP), the Superior Court of Justice concluded that the “SELIC” rate should be applied as both the index for monetary correction and default interest, with the judgment being interrupted to resolve three procedural questions raised by Justice Luis Felipe Salomão.
However, Law 14.095/2024 resolved the issue differently from the prevailing jurisprudential understanding. The amendment stipulates that, in the absence of an agreement or legal provision, monetary correction will be performed using the “IPCA” index (article 389 of the Civil Code), while the legal rate for default interest will correspond to the “SELIC” reference rate, minus the applied monetary correction index (article 406 of the Civil Code).
The amendment also clarifies that the methodology for calculating the legal rate and its application will be defined by the National Monetary Council (“CMN”) and disclosed by the Central Bank. Furthermore, in the event that the legal rate yields a negative result, it will be considered zero for the purposes of calculating default interest.
However, the change does not resolve all judicial controversies, as it fails to establish important criteria related to the calculation of the legal rate, such as the choice between the “Accumulated SELIC” or “Compounded SELIC” method.
This issue, which will significantly impact the outcome of calculations and, consequently, the fulfillment of the purpose of default interest (to induce the debtor to payment and compensate the creditor for delay), remains one of the pending procedural questions in Special Appeals No. 1.081.149-SP and No. 1.795.982-SP and must also be addressed by the CMN, as stipulated by the amendment introduced by §2 of article 406 of the Civil Code. Its resolution is a crucial point for achieving the desired legal certainty in this matter.
Authored by: Maria Carolina Oliveira Chiacherini
