In a contract for the purchase and sale of property with a fiduciary alienation guarantee, the rules of the Consumer Defense Code do not apply. In these cases, the resolution by default of the debtor must comply with the form provided for in Law 9.514/1997.
With this in mind, the 2nd section of the Superior Court of Justice defined the thesis on repetitive appeals, the main consequence of which is to prevent real estate buyers who delay the payment of installments from receiving part of the sums already reimbursed, in the event of contractual resolution.
The vote was unanimous, according to the position of Minister Marco Buzzi, rapporteur for the appeal. The trial was closed this Wednesday (26/10), after a vote by Minister Paulo de Tarso Sanseverino. The collegiate limited itself to discussing the details of the writing of the thesis.
The approved statement is:
In a contract for the purchase and sale of goods with a duly registered guarantee of fiduciary alienation, the resolution of the pact in the event of default by the debtor, duly constituted in arrears, must comply with the form provided for in Law 9.514/1997, since it is a specific legislation, derogating, consequently, from the application of the Code of the defense of the consumers.
Return or no return?
The theme deals with the particular hypothesis in which the buyer of a good makes a financing with fiduciary alienation. In this document, the ownership of the asset is transferred to the financial institution that provided the money and is only returned when this debt is fully repaid.
The application or not of the Consumer Defense Code in these cases makes all the difference: it is what would allow the debtor to recover or not a significant part of the sum already paid before the default.
Article 53 specifies that, in these contracts of purchase and sale, the contractual clauses which establish the total loss of the installments paid to the benefit of the creditor who, by default, claim the resolution of the contract and the recovery of the property sold are null and void. and empty.
Law 9.514/1997, which instituted fiduciary alienation, provides that once the debt has expired without full or partial payment, ownership of the asset is consolidated in the name of the fiduciary creditor.
When this happens, the creditor must proceed to the public auction of the property within 30 days, with the aim of repaying the debt – including conventional interest, penalties, other contractual charges and the costs necessary for the auction. herself. The remaining amount – if any – must be remitted by the creditor to the debtor.
For Minister Marco Buzzi, the case is really the application of Law 9.514/1997, since it is a specific rule and posterior to the CDC. The only requirement is that all formalities are duly complied with. The purchase-sale contract with fiduciary alienation must be duly registered and the debtor established in arrears.