Cíntia Solé
Lawyer at Marcos Martins Advogados
In a recent judgment, the 1st Chamber of Private Law of the TJSP upheld the lower court’s decision in case no. 1003666-59.2018.8.26.0002, which ordered the promissory-seller to refund in full the amounts paid by the promissory-buyer, understanding that the construction company was abusive in denying the termination of the contract and intending to carry out an extrajudicial auction of the property in the face of the buyer’s default.
According to the opinion of Reporting Judge Enéas Costa Garcia, by failing to comply with the promissory-seller’s request to undo the deal through contractual termination, the construction company acted with manifest abuse in maintaining the contract only to later demand extrajudicial foreclosure.
According to the rapporteur, despite the construction company’s allegations that the contract had been terminated due to the buyer’s default and that there was no balance to be repaid, the seller’s failure to deliver the property within the stipulated period was incontrovertible. The work, which should have been completed in November 2015, with a delivery deadline of May 2016, was only granted the “habite-se” in December 2016.
In view of this, the TJSP ruled that, in the worst-case scenario, the promissory-buyer would be entitled to a refund of the amounts paid with retention, so that the conduct of the promissory-seller in promoting the out-of-court auction of the property was unjustified.
In this sense, in line with Precedent 543 of the STJ, which determines the immediate and total restitution of the installments paid by the promissory-buyer in the event of the exclusive fault of the promissory-seller, the TJSP ruling upheld the decision that extinguished the contract due to a fact attributable to the promissory-buyer, with the promissory-seller being ordered to make full and immediate restitution of the amounts paid by the promissory-buyer.
The Marcos Martins law firm is attentive to new developments in the case law of the country’s courts, in order to provide adequate and effective advice to our clients.
