Cíntia Solé
Lawyer at Marcos Martins Advogados
The abusiveness of the interest charged by banks for granting loans has been the subject of recurrent discussion in Brazilian courts.
On the one hand, there are consumers claiming that the contracts are abusive and that it is illegal to charge interest, which in many cases exceeds 1,000%/year (one thousand percent per year). On the other hand, there are financial institutions that defend the maintenance of what is provided for in the contracts, claiming that the interest charged is not illegal or abusive.
In this regard, the 18th and 22nd Chambers of Private Law of the São Paulo Court of Justice, when judging civil appeals No. 1061280-48.2020.8.26.0100 and No. 1025512-98.2019.8.26. 0196, recognized, in similar cases, the abusiveness of the remunerative interest rate for bank loans, determining, in both cases, the simple restitution of the amount overcharged by the banking institutions, as well as the reduction of interest which had previously been determined at approximately 24%/month (twenty-four percent per month) and 22%/month (twenty-two percent per month) to the average market rate published by the Central Bank – BACEN of approximately 9%/month (nine percent per month).
As an example, in the case judged by the 22nd Chamber of Private Law of the TJSP, Reporting Judge Roberto Mac Cracken understood that there is no plausible justification for contracting such high interest rates due to the risk of the operation and when they differ from the average practiced by the market and the average rate measured by the Central Bank of Brazil – BACEN.
In such cases, according to the judge, the interest rate becomes manifestly abusive, so that in order to remove the contractual imbalance and excessive profit, it is necessary to revise the clause of the contract with the reduction of interest to the level of the average rate practiced by financial institutions in the period, carrying out the due recalculation of the outstanding balance.
These two cases are just examples of how case law has been establishing the need to reduce the interest rates charged in Brazil and the consequent refund to consumers of the difference in the amounts paid to financial institutions on loans.
Marcos Martins Advogados is attentive to the constant updating of case law and is ready to act in defense of its clients’ rights.
