The Third Panel of the Brazilian Superior Court of Justice (“STJ”), in a recent decision, admitted the attachment of acquisition rights derived from a promissory purchase and sale agreement in favor of the promissory seller of the property, even without registration of the instrument of this legal transaction. This understanding was included in the judgment issued under Special Appeal No. 2.015.453/MG, by Hon. Nancy Andrighi.

In this case, after the default of two promissory notes, the promissory seller sought in court the attachment of the promissory buyer’s rights over the property.

The Brazilian Civil Procedure Code (“CPC”) allows the creditor to request, in executions, the attachment of “acquisitive rights derived from the promise of purchase and sale and fiduciary alienation in guarantee” (art. 835, item XII). In this case, the attachment does not fall on the property; but on the purchasing rights that derive from the contract, which have economic expression.

At the judgment, it was up to the STJ to decide whether this attachment hypothesis provided for in the CPC could be extended to executions in which (i) the creditor is the promissory seller of the property; and (ii) the promise of purchase and sale was not recorded in the real estate registry.

The appeal sought to change the decision of the Court of Justice of Minas Gerais, which had understood that it was impossible to seize the acquisition rights when the creditor is the promissory seller of the property, with the promise of purchase and sale being the object of the execution.

The STJ changed the second instance decision and agreed with the promissory seller, in the sense that “the pledge of acquisition rights arising from a promissory purchase and sale contract does not depend on the registration of the legal transaction”, and that the promissory seller himself may require the attachment.

In the conducting vote, the Judge Rapporteur invoked as grounds the absence of legal restriction, the instrumental nature of the attachment, which is a mere assumption for subsequent executive acts, and the fact that it is not a measure that excessively encumbers the debtor, at the same time it is necessary to secure the fair interest of the creditor.