Criticism of the application of equity by the STJ in exorbitant defeat fees
In March of this year, the Superior Court of Justice, in the judgment of Special Appeal no. 1.864.345 - SP, under the reporting of Minister Benedito Gonçalves, rendered an opinion to the effect that attorney's fees may be fixed based on an equitable appraisal in actions involving an exorbitant amount, under the allegation that application of the general rule would result in unjust enrichment of the winning lawyer.
It should be noted that fees may be contractual, which are those agreed upon between the lawyer and the client, in the sphere of private autonomy; and contingency fees, which are paid by the lawyer of the losing party to the lawyer of the winning party, in the sphere of a lawsuit, by virtue of a conviction. Both types of fees are cumulative and due to the lawyer for rendering his service.
The rule (art. 85, §2, CPC) provides that the fees shall be fixed in the percentage between 10 and 20% of the amount of the award, the economic benefit obtained or, in the impossibility of measuring it, on the updated value of the cause. These criteria apply regardless of the content of the decision, including in cases of dismissal of the claim or a judgment without resolution of the merits (art. 85, §6, CPC).
Exceptionally, the CPC provides for the determination of fees by equitable appraisal by the judge, which shall be observed in cases where the economic gain is minimal or inestimable, or even when the value of the case is very low (art.85, §8, CPC).
In the appeal addressed to the STJ, the appellant challenges the fees of counsel that the TJSP fixed on the basis of equity due to the high value of the cause. In summary, a company filed an action for annulment against the São Paulo State Treasury Office and its claim was granted. The value of the claim exceeded BRL 21 million and, for this reason, the Court held that to fix the fees at 10% would result in unjust enrichment of the company's lawyers, for which reason it arbitrated the fees on an equitable basis at BRL 100,000, applying art. 85, §2, CPC.
The STJ, then, dismissed the appeal and upheld the decision of the TJSP on the grounds that art.85, §8, of the CPC, in providing for the arbitration of fees by equity in cases where the value of the cause is very low or the economic gain is derisory or inestimable, is not exhaustive and absolute. Therefore, it may be applied in the event the value of the cause is too high, in respect for the principle of procedural good faith.
The Minister affirmed that art. 85, §8, of the CPC/2015 can be applied in cases in which the economic gain is not inestimable or derisory or, further, in which the value of the cause is not very low, and that "otherwise, we would be facing an excessive attachment to the literalness of the law".
It is noted that the Minister used an extensive interpretation. However, its use is inappropriate in cases where there is no doubt or gap. On the contrary, §8, of art. 85, is restrictive when establishing the hypotheses for the application of equity, not having expressly stated that the equitable assessment is applicable in cases of exorbitance. The legislator has outlined clear and objective criteria for the determination of the award of defeat fees in §2, and the general rule is applicable to the present case.
It must be emphasized that attorney's fees must remunerate the lawyer's work with dignity and are even considered a sum of food nature. And this, obviously, cannot be considered unjust enrichment.
Sílvia Araújo
Tutor of Post-graduate studies in Civil Procedural Law
Source: http: //www.stj.jus.br/sites/portalp/Paginas/Comunicacao/Noticias/Ministro-aplica-entendimento-de-que-honorarios-podem-ser-fixados-por-equidade-em-causas-de-valor-muito-alto.aspx
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