Protest of prescribed check and payment of moral damages to the debtor

This text aims to concisely examine important points regarding the protest of checks before and after they are prescribed, highlighting the most recent position of the higher courts on the subject.




Article 47 of Law 7,357/85 allows the check holder to file executive action against the issuer, the endorser and the respective guarantors in the event of non-payment of the debt, within the six-month statute of limitations established in article 59 of the same law, counted from the date of expiration of the deadline for presenting the security to the drawee bank.


This presentation must occur within 30 days, counting B2B Lead from the date of issue, in the case of a check to be paid in the same place, or 60 days, in the case of a check issued for payment in a different place of issue.


Presentation of the check to the bank within the period prescribed by law guarantees the title holder the right to executive action against endorsers and their respective guarantors. However, executive action to collect its debt in relation to the issuer and its guarantors continues to be guaranteed, even if such presentation does not occur, in accordance with the provisions of Precedent 600 of the Federal Supreme Court, transcribed below:


SUMMARY No. 600/STF – Executive action may be taken against the issuer and its guarantors, even if the check is not presented to the drawee within the legal deadline, as long as the exchange action is not prescribed.


Within the statute of limitations for the executive action, it is clear that a check protest is appropriate, in accordance with REsp 1,297,797/MG, the summary of which is transcribed as an example:


1. The main purpose of the protest is to prove the breach of an obligation arising from a security or other debt document. 2. It is legitimate to protest a check made after the presentation deadline provided for in art. 48, caput, of Law no. 7,357/85, as long as the statute of limitations relating to the exchange action for execution has not expired . 3. The requirement to carry out the protest before the deadline for presenting the check has expired is aimed only at the mandatory protest to propose the execution of the title, in accordance with arts. 47 and 48 of Law no. 7,357/85. 4. Special resource provided. (STJ – REsp: 1297797 MG 2011/0291426-0, Rapporteur: Minister JOÃO OTÁVIO DE NORONHA, Judgment Date: 02/24/2015, T3 – THIRD PANEL, Publication Date: DJe 02/27/2015) (emphasis- if).





Therefore, the protest of debt titles and documents should preferably be used by creditors, since it is the most efficient means of recovering credits, being capable of providing the interested party with numerous advantages, compared to other forms of collection.


In addition to the free presentation of the title to protest, inaugurated by State Law 23,204/2018 , it is possible to list several benefits covered by the procedure, such as: agility in debt collection, with high return rates; interruption of prescription; immediate inclusion in the debtors register, with the consequent impact on the defaulter's credit; indefinite permanence in the notary's records; and prevention of litigation, including avoiding the long and expensive process of going to court.