The 4th Chamber of Private Law of the Court of Justice of São Paulo declared the invalidity of a contract rescission entered into between a developer and a client who had purchased a property in Guarujá. The decision also annulled the giving in payment (dação) to a creditor company, made as part of payment of a debt owed by the developer.
The plaintiff purchased an apartment in the defendant’s development and, with the price paid in full and faced with the delay in delivery of the construction, chose to undo the deal and recover the amount paid, around R$ 700 thousand, in four installments. However, less than a month later, the developer filed for judicial reorganization and included the plaintiff’s credit among the unsecured creditors. That is, those who will be paid last.
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The designated reporting judge of the appeal stated that the evidence in the case records makes it clear that, on the date of the rescission, the developer was already preparing for the out-of-court reorganization process, a fact that was concealed from the plaintiff and harmed him.
“It follows that the decision expressed by the defendant, to return the amount paid through four installments, was manifested with the awareness that the creditor (plaintiff) would not receive the amount in the manner set out in the obligation,” he noted. “Had the plaintiff been aware of what the defendant was contemplating when it assumed the duty to return the amount paid, he would have kept the property.”
The reporting judge noted that five years have already passed and the defendant has still not complied with the reorganization plan, which evidences willful misconduct and bad faith. “The cause of the rescission, for the defendant, lies in the purpose of paying nothing. It knew of the reorganization that would harm its solvency and was freed from delivering the property that had been committed and paid for. There are no reciprocal interests, but rather a fraudulent and manifest intent, data venia.”
The judge further emphasized that the developer, in addition to not having honored the agreement made with the appellant, gave the apartment as part of payment to the creditor/financing company of the construction, which also acted with willful misconduct in accepting the giving in payment.
“What applies to the defendant applies to the creditor, and both, with direct intent, frustrated the plaintiff’s expectations, depriving him of the two possible options: delivery of the property, excluded by the giving in payment, and return of the amount paid, eliminated by the reorganization that promises no payment whatsoever.” And he concluded: “the nullity or invalidity of one contract affects the other with the same intensity and in the same proportion.”
Source: TJSP
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