Historically, brazilian law has been a great concern to protect the salary and amounts equivalent to it, since it is an essential amount for the support of a person and his family.
In this sense, the Chapter 833, IV, of the Brazilian Civil Procedure Code, provides for the unseizability of the salary, except for: (i) the admission of the garnishment for payment of alimony; and (ii) the admission of attachment when the salary exceeds the limit of 50 minimum wages.
However, this rule has always generated discussions about the balance between two important principles arising from the dignity of the human being: the debtor’s right to an existential minimum and the creditor’s right to satisfaction.
This is because, while some scholars defend unseizability as a way of guaranteeing the “existential minimum” necessary for the human dignity of the debtor, others observe that the amount of 50 minimum wages (which currently corresponds to R$ 60,000.00 ), is shown to be very dissonant from the Brazilian reality, whose average salary is currently R$ 2,891.00.
Considering this scenario, some judgments of the Brazilian Superior Court of Justice have been admitting, exceptionally, the attachment of salaries below the limit of 50 minimum wages, when observing the peculiarities of the specific case.
What was a trend became a clear sign, through the judgment, by the Special Court of the Brazilian Superior Court of Justice, of the appeal number 1.874.222/DF, opportunity in which the majority of the members of the Court voted to authorize the flexibility of the attachment of salary below 50 minimum wages, provided that other enforceable means are unfeasible and the debtor’s “existential minimum” is reserved.
In this sense, it was the vote of Judge João Otávio de Noronha, who asserted that “the setting of this limit of 50 minimum wages deserves criticism, insofar as it proves to be very inconsistent with the Brazilian reality, making the device practically innocuous, in addition to not translating the true scope of unseizability, which is the maintenance of a dignified reserve for the support of the debtor and his family.”.
With this judgment, an important advance can be noted for the standardization of the matter, which, however, will not be exhausted until there is a definition of objective parameters for the authorization of wage attachment, which, for the time being, continues to be authorized in accordance with the analysis of the concrete case, generating decisions quite divergent from each other.
