Ação de Consignação em Pagamento: Resumo

Summary

The 'Ação de Consignação em Pagamento' (Action for Consignment of Payment) is a unique legal procedure in Brazil where a debtor seeks to pay a debt but faces obstacles in doing so, such as the creditor’s refusal or inability to accept payment. This action is used to deposit the owed amount, either judicially or extrajudicially, to relieve the debtor from the obligation. It is commonly used when there are disputes regarding payment or delivery of goods. The procedure involves filing in the correct jurisdiction and ensuring that the payment process is properly followed to protect the debtor from penalties.

Takeaways

• 😀 The action of consignation in payment is a special procedure where the debtor initiates the action to pay a debt when they cannot directly pay the creditor.
• 😀 The main goal of consignation in payment is to release the debtor from their obligation by depositing the amount due in court when payment can't be made to the creditor directly.
• 😀 Common reasons for using consignation include: creditor incapacity, refusal to accept payment, uncertainty about who should receive payment, and delays in payment.
• 😀 Consignation can be done either extrajudicially (via a bank deposit) or judicially (through a formal court process) if the extrajudicial attempt fails.
• 😀 In extrajudicial consignation, the debtor deposits the money at the bank, and the bank notifies the creditor within 10 days. If the creditor doesn't accept the deposit, the debtor has one month to proceed with the judicial action.
• 😀 For extrajudicial consignation to be valid, the creditor must either accept the payment or fail to collect it within the notification period. If the creditor does not respond, the debtor can initiate judicial proceedings.
• 😀 Judicial consignation is necessary when extrajudicial attempts (like through the bank) fail. It requires the debtor to go to court to request the release from the debt.
• 😀 If multiple creditors are involved, the debtor may face confusion about whom to pay. In such cases, all potential creditors are notified, and if no one claims the payment, the funds are returned to the debtor.
• 😀 In cases of successive payments (like monthly installments), the debtor can consign each installment after it becomes due, typically within 5 days after the due date.
• 😀 In situations involving uncertain goods (like choosing between rice or soybeans for payment), the debtor must specify the goods to be delivered in the initial petition, or the judge will set a deadline for the creditor to specify which item they prefer.

Q & A

What is the purpose of the Ação de Consignação e Pagamento?

The purpose of the Ação de Consignação e Pagamento is to allow the debtor to deposit the amount they owe in court or with a bank when the creditor refuses to accept the payment. It aims to relieve the debtor of their obligation and prevent further penalties like interest or late fees.

Why is the Ação de Consignação e Pagamento considered an unusual legal action?

The Ação de Consignação e Pagamento is considered unusual because it is initiated by the debtor, who wants to pay their debt but is unable to do so due to the creditor's refusal or inability to accept the payment. This is counterintuitive since typically the creditor sues to collect a debt, not the debtor seeking to pay.

What are some common scenarios where the Ação de Consignação e Pagamento might be used?

Common scenarios include when the creditor refuses to receive payment without justification, when the creditor is absent or unreachable, when the creditor does not want to receive payment under the agreed terms, or when there is a dispute about who should receive the payment (e.g., multiple creditors).

Can the Ação de Consignação e Pagamento be used for more than just monetary payments?

Yes, the Ação de Consignação e Pagamento can also be used for the delivery of goods. For example, if the debtor is supposed to deliver goods but cannot reach the creditor, they can deposit the goods in court as part of the action.

What is the difference between extrajudicial and judicial consignation?

Extrajudicial consignation involves the debtor depositing the owed amount at a bank, where the bank notifies the creditor. If the creditor does not accept the deposit within 10 days, the debtor must file a judicial action. Judicial consignation occurs when the debtor directly files an action in court after the extrajudicial attempt fails or is not possible.

How does the extrajudicial consignation process work?

In the extrajudicial process, the debtor deposits the owed amount in a bank, and the bank notifies the creditor. If the creditor does not claim the deposit within 10 days, the debtor must initiate a judicial action within one month to secure their release from the obligation.

What happens if the creditor does not accept the payment in the extrajudicial process?

If the creditor does not accept the payment within the 10-day notification period, the debtor must proceed with a judicial action within one month. Failure to do so could result in the debtor not achieving the desired release from their obligation.

What is the territorial jurisdiction for filing the Ação de Consignação e Pagamento?

The action must be filed in the court where the payment was supposed to occur. This means the debtor will file in the jurisdiction of the location where they intended to make the payment.

What happens if there are multiple creditors in a case of Ação de Consignação e Pagamento?

If there is a dispute between multiple creditors about who should receive the payment, the debtor must name all possible creditors in the action. If only one creditor appears to accept the payment, the debtor is released. If multiple creditors appear, the court will determine how the payment should be distributed.

Can the Ação de Consignação e Pagamento be used for recurring payments, such as monthly installments?

Yes, the Ação de Consignação e Pagamento can be used for recurring payments. If the debtor is unable to pay an installment on time, they can deposit the overdue amount and continue to make subsequent deposits for the following installments until the debt is settled.