On August 1, 2023, the Special Court of the Superior Court of Justice (STJ) once again postponed, upon request for further consideration, the judgment of Special Appeal No. 1,795,982/SP, which discusses the interest rate index that should apply to late payment interest on private law convictions. The Article 406 of the Civil Code provides that “when late payment interest is not agreed upon, or when agreed upon without a stipulated rate, or when derived from a legal provision, they shall be fixed according to the rate in force for the delay in payment of taxes owed to the National Treasury.” The dilemma lies in whether the late payment interest rate mentioned in the said provision is 1% (one percent) per month, as per Article 161, §1 of the National Tax Code, or the Selic rate (which includes late payment interest and monetary correction), considering it is the index that applies to payments owed to the National Treasury (Article 13 of Law 9,065/95 and Article 39, §4 of Law 9,250/95). Since 2008, the STJ has held that the Selic rate should be applied, as decided in EREsp 727.842/SP.
However, in October 2021, the 4th Panel submitted Special Appeal No. 1,795,982/SP for reconsideration by the Special Court for a review of the matter. The judgment of Special Appeal No. 1,795,982/SP began in March 2023, during which Minister Rapporteur Luis Felipe Salomão voted against the use of the Selic rate. At present, the score is tied at 2-2. Minister Humberto Martins sided with the rapporteur, but Ministers Raul Araújo and João Otávio de Noronha disagreed, advocating for the continued use of the Selic rate.
The judgment resumed on August 1, 2023, with a request for reconsideration filed by Minister Benedito Gonçalves, which was converted into a collective consideration. This is an important judgment that could put an end to the long-standing discussion on the correct interpretation of Article 406 of the Civil Code and will have a significant impact on the method of updating debts arising from judicial convictions.