The Third Panel of the Superior Court of Justice (STJ, Brazil’s highest appellate court for non-constitutional matters) unanimously ruled that airline miles and points accumulated in loyalty programs can be seized to pay debts. Seizure is the judicial attachment of a debtor’s assets to guarantee debt settlement. The decision was issued in the judgment of Special Appeal (REsp) 2,198,485, under the reporting of Justice Nancy Andrighi.
Miles as Digital Assets
The panel found that loyalty program points, when carrying measurable economic value, are classified as digital assets. Consequently, they become part of the debtor’s estate and can be used to satisfy financial obligations.
The STJ’s legal basis relies on Article 789 of the Brazilian Code of Civil Procedure (CPC), which establishes that debtors answer with all their present and future assets to fulfill their obligations. The reporting justice highlighted that debt enforcement law must adapt and keep pace with new ways of acquiring, storing, and investing wealth.
The Impact of Non-Transferability Clauses
A central point of the judgment was the analysis of the programs’ internal terms, which frequently classify miles as personal and non-transferable. The STJ ruled that a non-transferability clause, on its own, does not automatically make the points immune from judicial seizure.
However, enforcing the seizure requires caution and a case-by-case analysis to avoid imposing an undue burden on the loyalty program operator, which has no connection to the debt being enforced. Practical solutions identified by the court to enable this measure include:
- The repurchase of points by the issuing company itself, provided there is commercial interest.
- The freezing of the balance without transfer to third parties, preventing its use by the debtor and acting as a coercive measure.
Additionally, the STJ determined that once points are frozen, their expiration period must be suspended for the duration of the seizure. This requirement aims to prevent the assets from expiring while proceedings are underway, ensuring the effectiveness of the judicial restriction.
Practical Requirements for the Creditor
Despite establishing favorable precedent for seizure, the STJ set procedural boundaries for such requests. In the specific case examined, the court denied a generic request by the creditor, which sought to search for points without naming specific companies or programs.
The decision establishes that the creditor is responsible for expressly indicating the loyalty programs in which it seeks to locate assets. Only with this specific identification can the court notify the providers, evaluate their terms, and determine the feasibility of the seizure. The absence of this specification prevents the court from assessing the transferability of the points, which cannot be presumed across all programs in the market.
This content is for informational purposes only and does not constitute legal advice. For guidance on specific matters, consult a qualified lawyer.
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