STJ decides on the possibility of including contractual fees in the execution of a lease in a shopping center

Special Appeal No. 1,644,890 / PR, by Minister Ricardo Villas Bôas Cueva

The Third Panel of the Superior Court of Justice in the judgment of Special Appeal No. 1,644,890 / PR, reported by Minister Ricardo Villas Bôas Cueva, decided, unanimously, for the possibility of including the amount related to the contractual attorney fees in execution of a contract of rental of space in a shopping center. Thus, the entrepreneur’s appeal was granted to allow the inclusion in the calculation of the debit balance of the execution of the amount destined to the payment of contract fees previously stipulated.

The specific case was a Special Appeal filed by a shopping center entrepreneur against the judgment of the TJ-PR, which in execution embargoes involving a commercial property rental agreement maintained the sentence that excluded the amount related to the attorney’s fees from the execution. contractual terms. The court of origin justified the decision on the grounds that the cumulation with the succumbential fees is inadmissible and, consequently, bis in idem.

Add to that the factual situation, the fact that the parties signed a space lease agreement in a shopping center, with the executed party giving up on the business before the opening of the mall. Such event gave rise to the charge by the entrepreneur of the payment of the penal clause and the contractual legal fees, in harmony with the authorization expressed in the contract, according to which, the hypothesis of default would authorize the collection of specific expenses, among them the fees previously arbitrated in 20 % of the total debt.

Minister Ricardo Villas Boâs Cueva didactically clarified in his vote the impossibility of confusing contractual and succumbent fees, from the perspective of article 22, of Law No. 8.906 / 1994. In other words, the conventional fees result from the hiring of the lawyer to act in the dispute, while the succumbents remunerate the lawyer who was successful in the process.

Observing the specific circumstances of the specific case, the decision understood that it is not a question of bis in idem, but of the transfer of cost from the lessor to the lessee. In addition, it was stated that the contract is of a business nature, in an activity characterized by risk and regulated by the logic of free competition, therefore, autonomy of will and the pacta sunt servanda principle prevail.

It was concluded that it was impossible to depart from the aforementioned clause, based on generic claims of excessive burden and affront to objective good faith, especially in business contracts, which are generally symmetrical. Thus, the Reporting Minister asserted that “the transfer of costs from the lessor to the lessee does not go beyond what is usually expected in space rental contracts in shopping centers […] and there are no exceptional circumstances that authorize the Judiciary’s interference in the signed, the inclusion of fees in the execution should be allowed ”.

By: Wilson Sales Belchior