The buyer of a property who is subject to a fiduciary alienation in guarantee agreement, should he judicially seek the termination of the contract and the return of the amounts paid based solely on the allegation that he can no longer honor the installments, is not entitled to the return of the money after the simple retention of a percentage in favor of the seller, along the lines provided for by the Consumer Defense Code (CDC). Termination of a contract due to inability to pay configures an anticipatory breach and gives rise to the sale of the asset at auction.
Sale of the asset at auction
In such cases, with the configuration of the hypothesis of anticipatory breach of the contract, the provisions of articles 26 and 27 of Law 9.514/1997 apply, which provide for the delivery to the debtor, once the sale of the asset at auction is concluded, of the amount remaining from the payment of the total debt, expenses, and applicable charges.
The understanding was established by the Third Panel of the Superior Court of Justice (STJ) in reversing a ruling of the Court of Justice of São Paulo (TJSP) which, based on the CDC, had ordered the termination of the contract for the purchase and sale of the property with the retention, in favor of the creditor, of 20% of the amount paid.
The rapporteur of the seller’s appeal explained that the distinguishing feature of fiduciary alienation is the possibility of realizing the credit by extrajudicial means, with the collection being carried out through the real estate registry officer, who is responsible for summoning the debtor to pay the debt, plus interest and other charges, within 15 days.
“If the default is not cured, it is also incumbent upon the officer to record on the registration of the property the consolidation of ownership in the name of the fiduciary creditor, at which point the procedure for the extrajudicial sale of the asset by means of auctions will be triggered,” he added.
However, the rapporteur recalled that, in the case of the records, it was the purchaser who filed the action for termination of the contract, even though the seller, in principle, had not given cause to the dispute.
Generic allegation
In this scenario, the rapporteur highlighted that, most of the time, the termination action – normally brought by the creditor – has as its cause the occurrence of default, as provided for by article 475 of the Civil Code. However, he pointed out, there are hypotheses in which the request for termination is made by the debtor, as in the case of an asset that perishes or deteriorates without fault of the purchaser (articles 234 and 235 of the CC/2002).
In addition, the justice emphasized, it is possible to request termination based on excessive onerousness – a hypothesis, however, not compatible with the case under judgment, in which the requirements of extreme advantage of one of the parties or of an extraordinary or unforeseeable event were not pointed out by the plaintiff (article 478 of the code).
In the case under analysis – he said –, if there was non-compliance, it was not on the part of the creditor, but of the debtor, the plaintiff of the termination action, who manifested behavior contrary to the performance of the contract, generically alleging that he was unable to continue paying the installments. For the justice, an unusual situation was created, outside the hypotheses provided for by the legislation.
Anticipatory breach
The rapporteur stated that the conduct of the purchaser may be related to the institute of anticipatory breach, in which there is default even before the due date, when the debtor commits acts openly contrary to the performance of the contract, such as the attempt to terminate the agreement. Even so – he emphasized –, the creditor did not disagree with the request for termination, but rather with the manner in which the amounts would be returned to the purchaser.
Consequently, in this hypothesis, the rapporteur understood that the termination of the contract could be accepted due to the purchaser’s lack of interest in remaining with the asset; however, the return of the amounts paid should not occur in the form of article 53 of the CDC – according to which, after the seller’s expenses are reimbursed by means of the retention of part of the payment, the remainder is returned to the purchaser.
“The return of the amounts paid must observe the procedure established in articles 26 and 27 of Law 9.514/1997, by which, once the purchase and sale contract is terminated, ownership is consolidated in the person of the fiduciary creditor, in order then to submit the asset to auction, in the form of paragraphs 1 and 2 of article 27, satisfying the still-unpaid debt of the plaintiff and settling the other debts relating to the property, in order to return whatever is left over to the purchaser, if anything is left over,” the justice concluded in granting the creditor’s appeal.
Source: STJ
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