on Mar 14, 2024 8:10:42 GMT
Post on Mar 14, 2024 8:10:42 GMT
At the end of last year, the Termination Law was born (Law 13,786, of December 27, 2018). The law deals with numerous aspects involving the resolution and termination of contracts for the sale of properties under real estate development or subdivision regimes.
The impact of the Cancellation Law (Law 13,786/2018) on the legal scenario of contracts for the sale of properties “in plan” (incorporation) and in subdivision can be summarized as follows:
scope of the new law: although the object of the law is the sale of properties “off-plan”, it must also be applied, by analogy, to sales of properties already built when the purchaser can be considered a consumer (chapter 3). Likewise, although the law only deals with purchase and sale contracts and their consequences (promises and assignments), it must also be extended, by analogy, mutatis mutandi , to other types of contracts involving the transfer of property, such as the exchange contract;
interpretative guidelines for the new law: (i) the B2B Lead new law is intended to protect the most vulnerable party in the contract, the acquirer; and (ii) if the new law did not explicitly depart from some of these jurisprudential understandings and if they were favorable to the acquirer, the interpreter must consider them as subsisting;
applicability of the CDC: the CDC must be applied in harmony with the new law in “off-the-plan” property acquisition contracts signed by consumers through the “source dialogue” technique;
non-retroactivity of the new law: the new law only applies to contracts signed after its entry into force. For previous contracts, it is lawful for jurisprudence — with cunning — to change its understanding based on the rules and principles prior to the new law, in order to obtain the same practical result as the new law. However, in this case, the courts must modulate the effects of the new understanding to apply only to legal actions proposed after the jurisprudential change;
summary table and specific consent: although the legal effects of the lack of information in the summary table referred to in article 35-A of Law 4,591/64 and article 26-A of Law 6,766/76 are cosmetic, the absence of consent specific clause next to the clause relating to the termination of the contract results in the nullity of that clause;
unilateral termination: unilateral termination — which is unmotivated — remains fully admissible, as the new Law did not promote any changes in this regard;
right of repentance (articles 67-A, paragraphs 10 and 11, Law 4,591/64): (i) can be applied by analogy to cases of subdivision; (ii) admits manifestation through any means of communication that guarantees awareness of the developer and that has been made available by the developer to clients, regardless of an express agreement; (iii) is due even in cases of sales made within the developer's headquarters, as long as the purchaser is a consumer;
enjoyment value of the property and the amount paid to the seller: just as the purchaser must pay the enjoyment value of the property (article 67-A, paragraph 2, III, Law 4,591/64; and article 32-A, I, Law 6,766/76), the seller also needs to pay the enjoyment value of the money already paid, as the legal basis in both cases is the prohibition against unjust enrichment;
maximum risk of the purchaser: excluding the enjoyment values of the property, there is no risk that the consumer who, for any reason, has not been able to honor the payments, will become indebted beyond the total amount paid.