STJ sets the percentage of retention in the purchase and sale contract of property closed due to the buyer’s fault

Judgment of Special Appeal No. 1,820,330 / SP

The Third Panel of the Superior Court of Justice (STJ) in the judgment of Special Appeal No. 1,820,330 / SP decided that in the contracts for the purchase and sale of property, signed before Law No. 13,876 / 2018, the retention percentage, when the contract due to the buyer, is 25%. This, in turn, covers all amounts that must be reimbursed to the seller, including the brokerage commission, considered an administrative expense.

Law No. 13.786 / 2018, known as the “termination law”, in force since 12/28/2018, regulated, among other aspects, that in the event of a contract being terminated, by termination or resolution resulting from an absolute default of the buyer’s obligation, a conventional penalty limited to 25% of the amount paid may be deducted from the refunded amount, among other items.

In the beginning, the specific case was a collective consumer action filed by the Public Prosecutor’s Office against the company, questioning contractual clauses that established retention of values ​​between 50% and 70% of the amount paid by the buyer in the event of a resolution for default. The ruling of unfounded ruled that “the fixing of maximum amount of retention of amounts paid, in an abstract way, would violate the principle of freedom to contract”. The ruling dismissed the appeal, on the grounds that accepting the claim of the Public Prosecutor’s Office “would result in undue intervention in contractual freedom”.

In the vote of the Reporting Minister Nancy Andrighi, it was clarified that if the breach of the contract occurs due to “the seller‟ s default or fault ”, the full refund of the amount paid is ensured, according to Precedent 543 / STJ. However, if such an event occurs due to the buyer’s fault, the seller is guaranteed compensation for the expenses and losses arising from it.

The definition of the percentage of retention at a fixed level of 25% followed the understanding of the Second Section of the STJ in the contracts signed before the “termination law”, whose nature is indemnity and comminatory. That is, it does not depend on the circumstances of each particular hypothesis, so that “there is no differentiation between the use or not of the asset in the event of non-compliance with the contract and it also does not influence the general expenses incurred by the developer with the enterprise”.

As for the brokerage commission, in the event of extinction of the contractual link due to the seller’s fault, it must be returned in full to the buyer. Otherwise, since this is an administrative expense for the seller, according to the case law of the STJ, the brokerage commission “should be considered included in the percentage of 25% of the amounts paid”, when the termination of the contract is due to the fault or initiative of the buyer .

In this way, the Special Appeal was provided to partially judge the request for collective action, limiting the percentage of retention to 25%, in the event that the contract is terminated due to the initiative or fault of the buyer, already covered the amount paid as commission brokerage.

Wilson Sales Belchior