Penal clause in approved agreement can be reduced by the judge, says STJ

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=The decision that ratifies the agreement between the parties is res judicata. Even so, the penal clause contained therein may be reduced by the judge, based on the principle of equity, if the obligation has been partially fulfilled or if the amount is excessive.


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For minister Nancy Andrighi, article 413 of the CC allows review of the penal clause
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With this understanding, the 3rd Panel of the Superior Court of Justice admitted that it is possible to review the value of the fine imposed for non-compliance with an obligation that was agreed in a judicially approved agreement. The vote was unanimous.

The case deals with an action filed by private individuals against a real estate development company. During the processing, they reached an agreement, which provided for the fulfillment of obligations, under penalty of a fine of R$85 thousand.

As the company failed to comply WhatsApp Number List  with the agreement, the individuals began complying with the sentence, including paying the fine. The defendant then filed an objection, alleging that the expected value would be abusive.

The first degree court understood that the amount was not abusive. And the Court of Justice of Minas Gerais concluded that reviewing the value would harm the res judicata, as it was an agreement freely agreed between the parties and approved in court.

At the STJ, Minister Nancy Andrighi, rapporteur of the appeal, noted that reviewing the value is, in theory, possible. This is what article 413 of the Civil Code provides, responsible for transforming the relaxation of the value of the penal clause into a mandatory rule of public order.




The rule says that the penalty "must be reduced equitably by the judge if the main obligation has been fulfilled in part, or if the amount of the penalty is manifestly excessive, taking into account the nature and purpose of the transaction".

However, reviewing the conclusions of the ordinary courts would require a re-examination of facts and evidence and would be an exceptional measure. For her, the amount due for the fine does not appear to be manifestly excessive just because it exceeded R$85 thousand, as highlighted in the judgment under attack.