Action of obligation to do is appropriate to force debtor to pay financing

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It is possible to file an obligation action against someone who purchased goods in the name of a third party, but does not pay the debt installments. With this understanding, the 3rd panel of the Superior Court of Justice deemed an action appropriate that requested the transfer of the asset from the name of the third party to that of the person who made the purchase, to force him to pay the debt.


For the rapporteur, minister B2B Lead Paulo de Tarso Sanseverino, it is not always possible to classify obligations in the doctrinally foreseen modalities, which can cause “torment” to those who “see their rights violated, but cannot identify the appropriate action to cease the illicit ”.

“Article 461 of the 1973 Code of Civil Procedure is clear in recognizing that the judicial protection to be provided will be specific protection or, once the request is successful, measures that ensure the practical result equivalent to that of compliance”, explained the minister accompanied by all members of the class when granting the special appeal.

The case is that of a transport company that sold 13 trucks and 24 semi-trailers to another company. To close the deal worth R$4.7 million, the seller received R$900,000 and the buyer's promise that the remainder of the debt would be paid by paying off the installments of pre-existing financing with financial institutions or by transferring the debt to the buyer's ownership.

With the financing defaulted, the selling company filed a lawsuit asking for compliance with the obligation to do so. To base his decision, Sanseverino considered an obligation to do so in which the debtor undertakes to pay monthly to a third party for the financing of the goods acquired by him, but which are still in the name of the seller.



“If there is no obligation to pay to be executed, as the creditor/seller had already received the amounts that should be paid to him by the defendant when selling the vehicles, it is possible to identify an obligation to make the monthly payment of the financing contracted with the seller to a third party and, thus, allow the application of the procedure and instruments for implementing substantive law”, he concluded. With information from the STJ Press Office.