A motion is under consideration before the Special Court of the Brazilian Superior Court of Justice, which discusses the possibility of applying the Selic rate for the adjustment of civil debts, replacing the current model that, by analogy, employs Article 161, paragraph 1, of the National Tax Code and adjusts debts with monetary correction and default interest at a rate of 1% per month.
The discussion revolves around the interpretation of Article 406 of the Civil Code, which is used as a basis for setting default interest when not agreed upon by the parties. The outcome has the potential to affect over 6 million lawsuits in Brazil, as the established thesis will influence the method of adjusting compensatory actions in general.
After the rapporteur of the appeal, Minister Luis Felipe Salomão, voted against the application of the Selic rate, Minister Raul Araújo requested to review the case in order to analyze the matter more deeply. On 07 June 2023, he voted in favor of the application of the SELIC rate. As highlighted by Minister Raul Araújo in his vote, contrary to the current understanding, the reading of Article 406 does not necessarily refer to the Tax Code (Article 161, paragraph 1), but rather to the “rate in force for the delay in payment of taxes owed to the National Treasury,” which in this case is the SELIC rate.
Raul also provided a historical explanation of the Selic rate and highlighted that it guides operations in the Brazilian economy that involve interest and monetary correction, such as loans, foreign investments, savings, and housing financing, encompassing both interest and monetary correction in a single rate.
Finally, he pointed out that the current model of a 1% late payment interest rate combined with monetary correction deviates from the national context and results in enrichment of the creditor, as their compensation would be higher than what the banks themselves pay.
After the dissenting vote, the rapporteur requested time to analyze in more depth the arguments presented by Minister Raul. There is no set date yet, but once the rapporteur presents their considerations, the process will proceed to voting by the other justices of the Special Court.