Astreintes consist of a pecuniary coercive measure, set by judicial decision, with the scope of compelling the debtor to fulfill an obligation to do or not to do. Primarily inserted within the scope of Civil Procedural Law, such fines have an inhibitory and comminatory purpose, aiming to ensure the effectiveness of jurisdictional decisions and procedural celerity through psychological and economic pressure on the recipient of the order.
1. Definition, Concept, and Legal Nature
Astreintes — a term derived from the Latin adstringere (to tighten, to compel) — represent a compulsory pecuniary sanction, of an accessory nature, imposed by the magistrate to ensure the fulfillment of an obligation to do, not to do, or to deliver an item. They differ from damages as they do not have an indemnificatory nature; their objective is not to compensate for the loss suffered by the creditor, but rather to overcome the resistance of the recalcitrant debtor, forcing them to fulfill the specific obligation determined in the judicial or extrajudicial title.
The legal nature of astreintes is that of an indirect means of coercion. They fall under the judge's general power of enforcement, functioning as an instrument of psychological pressure. Unlike a criminal or administrative fine, the astreinte is provisional and mutable, and may be increased, reduced, or even excluded if it becomes insufficient or excessive, depending on the party's conduct in the proceedings.
2. Historical Origin and Evolution in Law
The institute originates from 19th-century French jurisprudence (Code Napoléon), developed as a response to the impossibility of direct forced execution in obligations of a highly personal nature (nemo potest praecise cogi ad factum). French courts began to set pecuniary condemnations per day of delay to bend the debtor's will.
In the Brazilian legal system, astreintes gained modern contours with the 1994 Procedural Reform, which introduced Article 461 to the 1973 Code of Civil Procedure (CPC/73). With the advent of the 2015 CPC, the institute was consolidated and expanded, granting the magistrate greater autonomy for its application and reinforcing the principle of the primacy of merits judgment and credit satisfaction.
3. Exact Legal Provision
The primary legal basis for astreintes is found in the 2015 Code of Civil Procedure (Law No. 13.105/2015), specifically in the following provisions:
- Article 536, § 1: Establishes that, for the effectiveness of specific relief or to obtain an equivalent practical result, the judge may, ex officio or upon request, impose a daily fine.
- Article 537: Determines that the fine does not depend on a request from the party and may be applied in the cognizance phase, in provisional relief, in the judgment, or even in the execution phase.
- Article 537, § 1: Authorizes the judge to modify the value or periodicity of the accruing fine, or even exclude it, if they verify that it has become insufficient or excessive, or that the obligated party has demonstrated subsequent partial compliance or just cause for non-compliance.
- Article 84, § 4 of the Consumer Defense Code (Law No. 8.078/1990): Analogous provision for obligations to do or not to do in consumer relations.
4. Practical Application and Consolidated Jurisprudential Understanding
The application of astreintes requires that the set value be sufficient to discourage inertia, but it must not lead to the unjust enrichment of the opposing party. The Superior Court of Justice (STJ) has vast jurisprudence on the subject:
4.1. STJ Repetitive Theme 706
The STJ consolidated the understanding that the decision setting the daily fine does not constitute material res judicata, and its value may be reviewed at any time, including in the execution phase, if it proves to be negligible or exorbitant (REsp 1.333.988/SP). However, reduction should only occur in exceptional situations, under penalty of emptying the coercive force of the institute.
4.2. Application against the Public Treasury (Theme 1102)
Recently, the STJ reaffirmed the possibility of setting a daily fine against the Public Power to ensure the fulfillment of an obligation to do, especially in cases involving the provision of medicines and health treatments, respecting the principles of reasonableness and proportionality.
4.3. Initial Term and Enforceability
The fine begins to accrue after the expiration of the deadline set by the judge for the fulfillment of the obligation, counted from the personal notification of the debtor (STJ Súmula 410). It is important to note that, although the 2015 CPC allows for the provisional execution of astreintes after the decision setting them, the withdrawal of the pecuniary value is only permitted after the final and unappealable judgment in favor of the party (Art. 537, § 3).
5. Related Principles and Doctrinal Divergences
The institute is governed by fundamental principles of contemporary Procedural Law:
- Principle of Effectiveness of Jurisdiction: The process must deliver exactly what the party would obtain if the obligation were fulfilled voluntarily.
- Principle of Proportionality and Reasonableness: The amount of the fine must be balanced. Scholars such as Fredie Didier Jr. argue that the ceiling of the fine should not necessarily be the value of the principal obligation, under penalty of the debtor preferring to pay the fine rather than fulfill the order.
- Divergence on Destination: There is an academic debate about the destination of the fine. In Brazil, the value reverts entirely to the creditor (Art. 537, § 2). Minority currents argue that part of the value should be allocated to public funds or the State itself (as in the Anglo-Saxon contempt of court model), to avoid the private party's unjust enrichment.
6. Contemporary Relevance and Practical Impacts
In the current legal scenario, astreintes are indispensable tools for the protection of fundamental rights and diffuse interests. Their application is critical in actions involving the removal of illicit content on the internet (Internet Civil Rights Framework), environmental obligations, and the fulfillment of highly complex contracts.
Current jurisprudence has tended to avoid the "astreintes industry," where the creditor intentionally lets the fine accumulate. The STJ has applied the duty to mitigate the loss, stemming from objective good faith, to prevent the creditor from benefiting from their own inertia in communicating non-compliance or seeking alternative means of execution.
Legal and Jurisprudential References
- BRAZIL. Law No. 13.105, of March 16, 2015. Code of Civil Procedure.
- BRAZIL. Superior Court of Justice. Súmula 410: "The prior personal notification of the debtor constitutes a necessary condition for the collection of a fine for non-compliance with an obligation to do or not to do."
- BRAZIL. Superior Court of Justice. Repetitive Theme 706 (REsp 1.333.988/SP). Rapporteur: Justice Paulo de Tarso Sanseverino.
- BRAZIL. Superior Court of Justice. Repetitive Theme 1102 (REsp 1.854.481/SP). Rapporteur: Justice Ricardo Villas Bôas Cueva.
- DIDIER JR., Fredie. Course on Civil Procedural Law: Execution. Salvador: JusPodivm, 2023.
- NERY JUNIOR, Nelson; NERY, Rosa Maria de Andrade. Commented Code of Civil Procedure. São Paulo: Revista dos Tribunais, 2022.
