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The 4th Panel of the STJ Decided That, In Real Estate Termination, The Clause That Replicates The Termination Law Cannot Be Set Aside Without Evidence Of Disproportionality In The Specific Case.
The real estate termination cannot be treated as abusive by presumption when the penalty provided for in the contract merely reproduces the limit of the law. According to the 4th Panel of the Superior Court of Justice, it is necessary to demonstrate that the charge is disproportionate to the amount paid by the buyer for the retention to be considered abusive.
The decision came in the judgment of a special appeal by a real estate development company and reinforces that the analysis must be meticulous. The central message is clear: abuse is not automatic; it requires concrete elements.
What The STJ Decided About Real Estate Termination And Contractual Penalty
The collegiate concluded that if the Termination Law allows the retention of up to 10% of the contract value due to unjustified withdrawal by the buyer, it cannot be presumed abusive without demonstrating disproportionality.
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In practice, this understanding rules out the idea that any retention within the legal limit is, by itself, abusive. The focus shifts to the real impact of the penalty in the specific case.
The 10% Limit And What The Termination Law Says
The legal basis cited is Article 32-A, Section II, of Law 6.766/1979, which authorizes the retention of value in case of withdrawal by the buyer up to 10% of the contract value. This provision was inserted by the Termination Law, Law 13.786/2018.
Thus, the penalty clause provided in contracts for the purchase and sale of real estate receives direct support in the legislation. When the contract replicates the law, the STJ indicates that the clause cannot be disregarded without a specific reason.
The Conflict With The Consumer Protection Code And The Discussion About Total Loss
The retention has been legally contested when it represents the entire amount that has been paid by the buyer. The basis refers to Article 53 of the Consumer Protection Code, which defines clauses that result in total loss as null.
This conflict of norms led the Private Law panels of the STJ to opt for the application of consumer law in several cases.
The cited jurisprudence indicates that developers and construction companies may retain up to 25% of the amount paid by the buyer before the termination. That is, the discussion is not whether there can be an adjustment, but under what conditions it is justified.
The Message From The 4th Panel: It Is Not Enough To Say “It Is Abusive”; It Is Necessary To Prove
The ruling does not deny that abuse may exist even within the legal limit. What it establishes is that this depends on a specific situation that characterizes the abusiveness of the clause drafted under legal terms.
The rapporteur, Minister Isabel Gallotti, observed that the São Paulo Court of Justice presumed abuse in the retention without indicating any element that proved it.
For her, a clause that reproduces the terms of the law cannot be disregarded without a particularity that justifies the abusiveness in that case.
The Specific Case: Land, 10% Clause, And Divergence With The TJ-SP
The case dealt with a purchase and sale contract for a land plot with a provision for retaining 10% of the agreed value in case of termination.
The TJ-SP considered the clause abusive and authorized the retention of 20% of the amount that had been paid by the buyer.
From the perspective presented by the rapporteur at the STJ, it was lacking to indicate what would make the retention provided for in legal terms abusive. Without this demonstration, the automatic disregard may distort the balance of the contract.
Unjust Enrichment And The Weight Of The Buyer’s Withdrawal
Minister Isabel Gallotti also highlighted that automatically disregarding the clause without proof of disproportionality may result in unjust enrichment in favor of the buyer, who was responsible for the termination.
And she emphasized a relevant legal point: if the penalty clause merely limits itself to reproducing the terms of the Termination Law, there is no basis to speak of abusiveness, unless there was a declaration of unconstitutionality of the provision, which did not occur.
In your opinion, in real estate termination, is it fairer to maintain the retention provided by law or always reduce the penalty to protect the buyer, even when he withdraws without justification?
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