Procedural act before interdiction is not automatically annulled

nila44

When the incapacity for acts of civil life is judicially recognized, the procedural acts prior to the interdiction may be annulled, but this recognition depends on evidence in a specific action. With this understanding, the 4th Panel of the Superior Court of Justice denied the request to overturn the summons to a party.


The appellant had been cited in 2003, in a lawsuit filed by a construction company that requested contract termination and repossession of the property due to non-payment of installments. After losing the action, the author appealed, claiming that she was incapable of carrying out civil life acts and requested the nullity of the summons and all related acts.

It was judicially interdicted in February 2004 and, in November of the following year, the appeal presented to annul the process was rejected on the grounds that there was no judicial decree on the alleged interdiction at the time of the summons. The judgment became final in May 2008.

Sergio Amaral/STJ
A ban sentence only takes effect automatically from the moment it
is handed down, said Minister Salomão.
Sergio Amaral/STJ
The Public Defender's Office — the author's B2B Lead special curator — appealed to the STJ alleging that there was an improper summons to an incapacitated person and a lack of notice from the Public Prosecutor's Office. As the summons of the incapacitated woman took place on a date prior to the declaration of interdiction, the rapporteur, minister Luis Felipe Salomão, understood the procedural act to be valid.

He highlighted that, at the time the contract termination action was filed, the interdiction of the person interested in the action had not yet been decreed, that is, without provision for the interest of an incapacitated person and mandatory intervention by the Public Prosecutor's Office in the case.

According to Salomão, the sentence of interdiction only takes effect from the moment it is pronounced, not limited to declaring a pre-existing incapacity of the person, but also constituting a new legal situation of subjecting the interdicted person to guardianship.



Another way
The minister also explained that acts carried out prior to the interdiction, when incapacity already exists, could even be recognized as null, but not as an automatic effect of the interdiction sentence. To this end, according to him, a specific action must be proposed to annul the legal act, in which it must be demonstrated that the incapacity already existed at the time of its implementation.

“It should be noted that there is no reference in the judgment under appeal — not even in the appellant's allegations or in the opinion of the State or Federal Public Prosecutor's Office — that there was any observation in the interdiction sentence regarding the previous state of the interdicted person, with a view to determining retroaction. of the effects of the decision. This time, the general rule of the ex nunc effect of the interdiction sentence applies to the hypothesis”, he highlighted.