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November 2008
Number: XXXII

In this month’s newsletter, we highlight the ruling of the Higher Court of Labor Law (TST), by means of which a decision regarding a specific case of a factory closure ordered by a court of arbitration submitted to the Labor Court was ratified.

In the field of tax law area, we present a ruling which rejected the levying of income tax on moratorium interest payments, in view of their compensatory nature.

We also report on rulings resulting from multiple appeals to the Higher Court of Justice (STJ) in the light of the new law on multiple appeals, with a special emphasis on revision action for bank contracts.


CIVIL LAW Multiple appeals. Bank Contracts. Revision Action. The STJ smoothed out conflicts in the jurisprudence regarding matters concerning bank contracts, in a ruling on RESP Nº 1061530. In the ruling, the STJ argued, among other things, that financial institutions are not subject to the restrictions on remunerative interest stipulated in the Usury Law, beyond the simple stipulation that remunerative interest rates of over 12% per year are not abusive and that the dispositions of Art. 591 c/c Art. 406 of the CC/2002 are not applicable to remunerative interest on bank loan contracts.		LABOR LAW Legal aid does not exempt a firm from an appeal deposit In a ruling on AIRR 4007/2002-902-02-40.0, the TST argued that legal aid despite also being able to be applied to an individual employer, does not affect the appeal deposit, in which case the creditor is not the state but the employee. Justice Maurício Godinho Delgado, reminded the court that the granting of legal aid to an employer can only be effected under exceptional circumstances and requires proof that the payment of costs would make it difficult for the employer to sustain him or herself and his or her family, but this benefit does not extend to the appeal deposit.

CIVIL PROCEDURAL LAW Legal Notice on the part of the debtor in objecting to ruling is ruled out after deposit in court In a decision on RESP 972813, the STJ ruled that the initial deadline for a debtor to contest compliance with a ruling should be the date the deposit in court was effected of the disputed sum. In a concrete case, the debtor anticipated the seizure, depositing the sum at issue and requested subsequent notification to contest the action, to which the STJ did not agree, since seizure is automatic, after a deposit in court, notification to this effect also being dispensable, in view of the intended purpose of the act.		Break for women alone goes against the Constitution In a ruling on RR 1458/2004-033-15-40.1 and RR-36726/2002-900-09-00.5, the TST declared that the norm contained in Article 384 of the CLT, whereby, women, in the case of overtime have the right to a fifteen-minute break before restarting work is incompatible with the constitutional principle of equality between men and women, for reason of the heading of Article 5, of the Constitution of the Republic. Justice Aloysio Corrêa da Veiga pointed out that the only norms that allow for differential treatment of women are those that deal with maternity.

STJ considers copies taken from the Internet valid for lodging an appeal In a ruling on RESP 1073015, made by Justice Nancy Andrighi, the STJ deemed it a valid interlocutory appeal in Court, whose filed copies were obtained from an Internet address belonging to the Court itself to this effect, deeming equivalent a photocopy of the ruling under appeal , in conformity with the requirements of the CPC. The Bench ruled that in order for something to be recognized as an appeal, sufficient information must be provided to prove that the copies indeed originate from the court, such as a virtual logo, registration number, numbered pages, a court copyright declaration and identification of the court´s email address.		TST rules out FGTS fine on a contract terminated by mutual consent In a ruling on E-ED-RR-642.717/2000.5, the TST exempted companies from payment of a fine of 20% of FGTS deposits in cases where the employment contract was terminated by mutual consent by the parties, arguing that “the law expressly covers cases in which the fine of 20% is owed”, applying the principle of legality to labor law proceedings.

TAX LAW Moratorium interest is not subject to income tax Sums received by the taxpayer as delinquent interest according to the 2002 Civil Code have an compensatory character in the eyes of the law. Hence, the Second Panel of the STJ, in a ruling on RESPs 1037452 and 1066949, declared that these are not subject to income tax.		TST validates arbitration decisions in labor law In a ruling on AIRR-1475/2000-193-05-00.7, the TST upheld the decision that recognized as valid and effective, for all legal purposes, a verdict handed down by an arbitration judge in a case of labor law. The concrete case concerned action taken by a former employee, who had been dismissed, along with other co-workers, regarding the closing down of a branch in a city which had previously submitted breach of contract rulings to a court of arbitration.

STJ ABRIDGMENTS 362 - "Monetary correction of indemnities for moral damages are due as of the date of the adjustment” 363 - "Jurisdiction for trying and judging action taken by liberal professionals to retrieve debts from clients lies with the State " 364 - "The concept of restraint of mortgage in cases of a family asset also includes property belonging to people who are single, separated and widowed”

This moth, the article “Financial Losses and Recourse to Legal Action “, byManoel Duarte Pinto, can be consulted at www.trigueirofontes.com.br

Trigueiro Fontes takes part in Trade Mission to Miami
Roberto Trigueiro Fontes, Larissa Oliveira Maranhão and Juliana Oliveira de Lima Rocha formed part of the committee of the State Government of Pernambuco and the American Chamber of Commerce (AMCHAM Recife), which commemorated the inaugural flight from Recife to Miami, run by American Airlines. During his period as manager of the AMCHAM Recife Council (2004/2007), Roberto Trigueiro took part in various discussions regarding establishing this direct air route between the Northeast region of Brazil and the United States of America, for which reason he was delighted to be on the inaugural flight, and also to take part in the trade mission that involved various Pernambuco business people and State government authorities in the city of Miami. The trade mission was headed by the Secretary of State for Tourism of the State of Pernambuco, Sílvio Costa Filho.

Ana Luiza (ALD) gives talk in Recife on controversial aspects of Civil Procedural Law
Ana Luiza Duarte P. de Castro (ALD), a lawyer and member of the team at the regional Office in Recife, gave a talk at an event entitled "Current Controversies in Civil Procedural Law ". The event was organized by the Faculdade Salesiana and the Pernambuco Section of the Organization of Brazilian Lawyers. Ana Luiza is currently doing a Masters degree in Civil Procedural Law at the Catholic University of Pernambuco.

Rodrigo Chauvet (RFC) begins post-graduate course in Rio de Janeiro
Lawyer and member of our Rio de Janeiro team, Rodrigo da Fonseca Chauvet (RFC), has begun a post-graduate course in Corporate Administrative Law at the Cândido Mendes University - Centro (CPGD) /RJ. This means that one more member of our team is expanding his knowledge so as to provide an even better service for our clients in Brazil and overseas.

EDITORIAL BOARD composed of members Vanessa Arruda, Antônio Carlos Acioli and Luiz Gustavo Meira Moser, coordinated by partner Ana Carolina Brito.

The information disclosed herein does not necessarily represent the Firm's opinion. Disclosure limited to the Firm's Client's or persons connected thereto. Disclosure authorized subject to indication or origin.

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