The Third Panel of the Superior Court of Justice concluded that the application of the late-payment penalty on the full amount of the overdue rents, disregarding the punctuality discount provided for in the contract, does not constitute duplication.
The panel highlighted that, although the rebate and the penalty have the same objective – to encourage payment of the obligation –, they are institutions with distinct triggering events.
Unanimously, the panel partially granted the special appeal of a landlord who filed an eviction action for non-payment, with collection of rents and accessory charges.
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Punctuality discount in the contract
The lease contract defined both a bonus policy in case of punctuality in payment and a provision of a 10% penalty in case of delay. The rent amount was R$ 937.50, with a discount of R$ 187.50 for punctual payment, that is, a reduction of 20%.
Termination
At first instance, the judge granted the requests to declare the lease contract terminated, order the eviction, and sentence the tenants to the payment of the overdue rents and accessory charges, plus a late-payment penalty.
The Court of Justice of Paraná (TJPR) ordered the exclusion of the penalty, on the grounds that duplication in the collection was characterized. The TJPR considered that the non-enjoyment of the rebate (20% discount) already constitutes, in itself, a measure of punishment.
Positive sanction
The rapporteur of the appeal at the STJ, Justice Nancy Andrighi, pointed out that, although the punctuality rebate and the late-payment penalty are both types of sanction – tending, therefore, to encourage the fulfillment of an obligation –, there is a difference in relation to their applications.
While the rebate is a positive sanction, a technique of encouragement whose purpose is to reward the payment of the rent in advance or on the agreed date, the penalty is a negative sanction, applied in cases of default, and seeks to punish the debtor.
“The punctuality rebate, as an act of liberality by which the creditor encourages the debtor to make punctual payment, reveals itself not as a ‘disguised late-payment penalty,’ but as cooperative conduct directed at the fulfillment of the obligation, through which both parties benefit,” the justice highlighted in reforming the TJPR’s ruling and fully reinstating the judgment.
With the granting of the appeal, the panel determined that, in addition to losing the punctuality rebate, the tenants must pay the overdue rents with the 10% penalty on the agreed amount.
Source: STJ
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