(In)compatibilidade das súmulas e das teses jurídicas com a teoria dos precedentes

uma análise do julgamento do REsp 2.130.141/RS

Abstract

This article examines the challenges of the Brazilian system of precedents regarding the use of “súmulas” and “teses jurídicas”, abstract statements often applied automatically and detached from the factual circumstances that originally supported them. It argues, however, that these instruments can be made compatible with the theory of precedents, provided that courts acknowledge the need to identify the ratio decidendi of the paradigmatic cases underlying such statements. Within this framework, the study analyzes the judgment in REsp 2.130.141/RS, reported by Justice Antônio Carlos Ferreira, in which the Fourth Panel of the “Superior Tribunal de Justiça” (STJ) refused to apply “Súmula” 308/STJ to cases involving fiduciary sale. The opinion exemplifies the proper application of precedent theory by reconstructing the material facts that motivated the “súmula” - linked to fiduciary sale within the “Sistema Financeiro da Habitação” (SFH) - and demonstrating the structural differences between mortgage and fiduciary alienation, rejecting an expansive analogy and highlighting the systemic effects on legal certainty and the real estate credit market.