3/7/2022
In a trial session held last February 2nd, the Special Court of the Superior Court of Justice (STJ) resumed its judgment on the Repetitive Theme No. 1076, which discusses the range of the rule contained in article 85, paragraph 8 of the Code of Civil Procedure in cases where the amount in dispute or the economic gain are considered significant.
The nodal aspect of the case consists in defining the possibility (or not) of establishing attorney’s fees by equitable appreciation in cases of high value or high economic gain, while the Brazilian law would authorize the equitable appreciation only “in cases where the economic benefit or the value of the matter in controversy is inestimable or derisory “.
In a trial session held at the end of 2021, the reporting justice, Justice OG Fernandes, voted that it was not feasible to establish fees on an equitable basis in such cases (i.e. cases with substantial amounts involved), in which compliance with the percentages provided for in paragraphs 2 and 3 of article 85 of the CPC would be mandatory: (i) between a minimum of ten and a maximum of twenty percent on the amount of the award, the economic benefit obtained or, if it is not possible to measure it, on the updated value of the matter in controversy; (ii) between one and twenty percent, in cases where the Public Treasury is a party.
For the reporting justice, it would not be possible to confuse “inestimable value” with “high value”, the former expression being reserved for cases in which it is impossible to assign an economic gain.
Four cases are being affected to enable the judgment of this matter, and the Justice emphasized at the beginning of his vote the relevance of the theme, which interests “18 thousand judges and 1 million lawyers”.
Throughout his vote, the Justice recalled the role played by the professional categories in defense of their members during the process of drafting the current wording of the Code of Civil Procedure and emphasized its practice as result of the democratic game, disapproving, in turn, court decisions simply opting not to apply the law as it is written.
The Justice was accompanied by the concurring votes of Justices Jorge Mussi and Mauro Campbel, and the trial has since been withheld due to a request for examination by Justice Nancy Andrighi.
Author: Heitor de Lima Fávaro
