Law 11,232 of December 22, 2005, was introduced to reform the procedures for execution of judgment in order to give the judgment creditor effective means to obtain payment of the amount awarded. One of the changes made by Law 11,232/05 was to add article 475-J to the Code of Civil Procedure, which provides that "if a debtor found liable by judgment to pay a sum certain, or an amount that has already been liquidated, fails to make payment within fifteen (15) days, the amount awarded by judgment shall be increased by a fine of ten percent."

The provision raises a question: when does the time period begin to run? The controversy continues after more than a year, and the courts have accepted a wide variety of theories.

Some have taken the position that the court of first instance must issue specific notice to pay, through publication of notice in the official gazette to the debtor's counsel. Other decisions have found that the time period does not begin to run until notice to pay is issued by the court of first instance and is served on the debtor, by a court official or by letter. Yet other precedents take the line that the 15-day time period begins to run only after (i) the creditor applies for execution of judgment, submitting a statement of calculation of the debt; and (ii) notice to pay has been issued to the debtor, by publication in the official gazette addressed to the debtor's counsel.

Recently, the Superior Tribunal of Justice (STJ) held that specific notice to pay is not necessary, and that the creditor need not apply for execution of judgment in order for the time period to begin to run (Special Appeal 954.859-RS). The court took the position that the 15 days start running from the moment that judgment can be executed: either (i) when notice is published in the official gazette, addressed to the debtor's counsel, that judgment has become final, or (ii) when an appeal is filed that does not have the effect of staying execution of judgment. The question is still not settled, but this recent judgment of the STJ is a strong indication of the direction the law will take.

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