The Special Court of the Superior Court of Justice (STJ) recognizes the possibility of relaxing the protection of salaries in exceptional cases to settle non-food debts. In the judgment of Special Appeal (ERESP) 1,874,222, the Court ruled that salary immunity can be relaxed, even if the debtor earns less than 50 minimum monthly wages, as long as an amount sufficient to ensure a dignified life for the debtor and their family is preserved.
According to the rapporteur, Justice João Otávio de Noronha, relaxation can only be applied when other means of execution are not possible, taking into account the impact of garnishment on the debtor’s income. In the case at hand, the creditor appealed a decision by the Fourth Panel of the STJ, which denied the garnishment of 30% of the debtor’s salary, approximately R$8,500, to pay off a debt arising from checks in the amount of about R$110,000.
At that time, the Fourth Panel understood that STJ jurisprudence allows exceptions to the rule of salary immunity in two situations: the first, for the payment of alimony, regardless of the amount of remuneration, and the second, for the payment of other non-food debts when the debtor’s remuneration exceeds 50 minimum monthly wages. In both cases, a percentage must be preserved to guarantee the debtor’s and their family’s dignity.
However, the creditor cited previous decisions from the Special Court and the Third Panel, which allowed the garnishment of salaries only by considering the preservation of the debtor’s and their family’s subsistence, regardless of the type of debt or the debtor’s income. Thus, the issue was to determine whether the protection of salaries, in the case of non-food debts, should be conditioned only to guarantee dignified subsistence or whether the minimum limit of 50 minimum wages should also be observed.
Within the Special Court of the STJ, the rapporteur stated that the Brazilian Code of Civil Procedure (CPC), by removing the word “absolutely” from Article 833, began treating salary immunity as relative, allowing its relaxation through an analysis of principles and criteria of reasonableness and proportionality. The justice criticized the 50 minimum wage limit, considering it distant from the Brazilian reality and ineffective.
Therefore, the Superior Court understood that it is possible to relax paragraph 2 of Article 833 of the CPC, allowing garnishment of salary amounts below 50 minimum wages, in percentages suitable to the specific case, as long as the debtor’s and their family’s dignity is guaranteed, following the criteria of reasonableness and proportionality.