Since its introduction into Brazilian law, fiduciary transfer in security has become an essential instrument for granting credit, providing security for financial institutions and, on the other hand, facilitating consumer access to higher-value goods.
Despite the importance of this mechanism, for years the courts debated which event would mark the start of the five-day period for the fiduciary debtor to pay the full debt and recover the asset in cases of repossession under Decree-Law No. 911/69. This uncertainty generated legal insecurity and, at the same time, fueled excessive litigation, contributing to the overload of the Judiciary.
The interpretative divergence arose because, while part of the doctrine and case law understood that the period should begin only when the debtor became aware of the asset’s seizure—relying subsidiarily on the rules set forth in Articles 230 and 231 of the Code of Civil Procedure (CPC)—another view, endorsed by the Superior Court of Justice (STJ), maintained that the period would run from the execution of the preliminary injunction, regardless of subsequent formal notice.
Putting an end to the controversy, in its recent judgment of Special Appeal No. 2.126.264/MS, under the system of repetitive appeals (Repetitive Theme 1279), the Second Panel of the STJ established and unified the understanding on the matter by defining that the initial five-day term provided in Article 3, §1 of Decree-Law No. 911/69, as amended by Law No. 10.931/2004, begins with the execution of the preliminary injunction, and not with the debtor’s awareness of the asset’s seizure—despite the debtor’s reliance on the first doctrinal and jurisprudential interpretation.
In the case decided, the Court set forth the following thesis: “In repossession actions involving assets transferred under fiduciary security, the five-day period for full payment of the debt, provided in Article 3, §1 of Decree-Law 911/69, begins to run from the date of execution of the preliminary injunction.”
The interpretation adopted by the STJ, supported by entities such as the Brazilian Federation of Banks (Febraban) and the Center for Advanced Studies in Procedure (Ceapro), which acted as amici curiae, recognized the special nature of Decree-Law No. 911/69. Conversely, CPC rules—such as counting deadlines from service or notice—are general in nature and therefore do not apply over the specific rule, in observance of the principle of specialty.
For the Reporting Justice, Minister Antônio Carlos Ferreira, whose vote was unanimous, the execution of the injunction represents the legal milestone for consolidating ownership and possession of the asset in the fiduciary creditor’s estate. Thus, the five-day period has a substantive nature, not procedural, excluding the subsidiary application of CPC rules.
Beyond setting a new course for numerous cases that were suspended awaiting a qualified precedent, and determining the binding application of the thesis by courts nationwide in similar cases, the decision has significant practical implications.
For fiduciary creditors, it ensures greater speed and effectiveness in consolidating possession and ownership of the asset, essential to fiduciary security; for fiduciary debtors, it reinforces the need for immediate attention to debt settlement under penalty of definitive loss of the repossessed asset; and finally, for the Judiciary, considering that the precedent tends to reduce litigation by eliminating divergences and standardizing the application of law nationwide.
Ultimately, it is necessary to acknowledge the correctness of the thesis established by the Second Panel of the STJ in Repetitive Theme 1279, in accordance with the fiduciary transfer system. By prioritizing the literal meaning of the special rule and legal certainty, the STJ reaffirms its institutional role in standardizing case law and upholds the stability of credit relations and the effectiveness of guarantees, as outlined in Law No. 14.711/2023, known as the Legal Framework for Guarantees.
Available in: https://www.conjur.com.br/2025-nov-18/o-marco-inicial-do-prazo-para-purgacao-da-mora-em-acoes-de-busca-e-apreensao/
Autor: Mauro Somacal • email: mauro.somacal@ernestoborges.com.br • Tel.: +55 51 3012 0815
