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The Santa Catarina court ruled that the right to transfer only exists with full payment of the contract, dismissing the theory of substantial performance.
The Court of Justice of Santa Catarina (TJ-SC) decided that anyone who does not fully pay off the real estate purchase and sale contract does not have the right to transfer ownership, even if the amount paid exceeds 97% of the total. The decision overturned a ruling that had granted the compulsory award of an apartment in Itajaí (SC).
According to the portal Conjur, the court highlighted that failure to pay the price in full prevents the final deed, since the award compulsory action that replaces the formal registration when the seller refuses to sign the deed requires full payment as an essential requirement.
The case that reached the Court
The process began when the buyer of an apartment under construction filed a compulsory adjudication action claiming to have paid off practically the entire contract, with only a difference of approximately R $ 6 thousand.
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So, does paying tolls infringe on the right to come and go? Here's what the law clearly states.
The outstanding amount arose due to a discrepancy in the monetary correction index applied to the last installment.
The first instance judge accepted the buyer's argument and applied the so-called theory of substantial addition, according to which almost complete compliance with a contract may waive full payment.
Therefore, he ordered the transfer of the property to the plaintiff.
The understanding of the TJ-SC
A 7th Civil Chamber of the TJ-SC unanimously reformed the decision.
According to the rapporteur, the theory of substantial performance does not apply to compulsory adjudication actions, which have objective requirements and do not allow for flexibility in the main obligation.
In his vote, the judge highlighted that “one of the requirements for compulsory award corresponds to full payment of the agreed amount”, and that, without this full payment, the claim is unfeasible, even though most of it has already been accomplished.
The judge also cited precedents of the Superior Court of Justice (STJ) that consolidate this understanding.
Requirements for compulsory award
Compulsory adjudication is the legal instrument that obliges the seller to transfer the property to the buyer when he has already fulfilled his obligations.
However, the full payment of the price is an indispensable condition for the deferral of the action.
O TJ-SC reinforced that partial settlement does not generate the right to property, since the asset can only be registered in the buyer's name when there is no outstanding balance.
This positioning seeks ensure legal certainty in real estate transactions and avoid contractual insecurity.
Procedural and financial consequences
In addition to denying the buyer's request, the court noted that the appeal was not admitted for non-payment of legal costs, after the request for free legal aid was rejected — which constituted desertion.
With that, there was reversal of the burden of defeat, forcing the author to payment of the contractual difference and attorney's fees.
In practice, the decision reinforces the need for strict compliance with real estate purchase and sale clauses.
Even if the remaining balance is small, without full payment there is no right to transfer or definitive deed.
Legal impact and precedents
The decision of the TJ-SC follows the line adopted by STJ, who understands that compulsory award requires objective proof of full payment of the contract, eliminating subjective interpretations about the degree of compliance.
The higher court has already established that almost full payment does not authorize the transfer of ownership.
This positioning delimits the limits of contractual good faith: the buyer may have acted correctly, but the transfer is only completed upon full payment.
The precedent serves as a warning to promising buyers who seek to anticipate possession or the deed without proving the payment end.
You agree with the decision of the TJ-SC to deny the right to transfer even with 97% of the amount paid off? Does the rule protect legal certainty or punish the good faith buyer? Leave your opinion in the comments We want to hear from anyone who has experienced similar situations in real estate contracts.
It remains to be seen whether the legal system supports this compensatory modality in proportion to the percentage mostly paid to the creditor. The biggest problem now will be the disproportionate maneuver granted and blatantly accepted by the judiciary. It's a kind of judicial dictatorial aggression in which the individual is forced, in the name of the judiciary's self-centeredness, as a form of persecutory revenge, to default on payments with infinite interest.
It seems from the text that there was a billing error or at least a controversy that in theory would imply full payment and it is difficult to imagine that in order to avoid paying the 6 thousand owed someone would resort to justice, especially because the expected happened... time wasted... money wasted and nothing was resolved.
You'll pay two or three times for something you supposedly shouldn't... in short, it seems like a normal case of concrete application of Brazilian justice.
Then you should go to court to correct the error, not claim the property deed.
One solution would be to refinance the balance if the buyer has financial impediments to pay it off…