Background
A prospective buyer sought to terminate a contract for the purchase and sale of real property. The lower court recognized the buyer’s right to withdraw and ordered the seller to return 80% of the amounts paid, allowing the seller to retain the remainder to cover administrative expenses.
The appellate court affirmed. It held that the Consumer Defense Code applied and that the contract’s irrevocability clause could not compel the buyer to remain in a transaction the buyer no longer wished, or was no longer financially able, to complete. It also found that the contract itself permitted termination for the buyer’s nonperformance and that this remedy could not operate exclusively for the seller’s benefit. The seller filed a special appeal, arguing principally that the agreement was irrevocable and that rescission required proof of supervening excessive hardship. After that appeal was denied admission, the seller brought an interlocutory appeal to the Superior Tribunal de Justiça.
The Court’s Holding
The Fourth Panel unanimously denied the appeal. It concluded that overturning the finding that the contract permitted termination would require both reinterpretation of contractual provisions and reconsideration of the evidentiary record, inquiries barred in a special appeal by STJ Precedents 5 and 7.
The court added that the challenged judgment was consistent with STJ precedent recognizing that, for agreements predating Law 13,786/2018, a consumer may seek rescission of a real-estate purchase promise and obtain an immediate partial refund when the buyer caused the termination, while the innocent seller may retain a reasonable portion. The seller’s arguments under Article 2(2) of LINDB, Article 373(I) of the Code of Civil Procedure, and Article 478 of the Civil Code had not been addressed by the lower court and therefore lacked the required prequestioning under STJ Precedent 211. The seller also failed to demonstrate the asserted conflict of authority through the required analytical comparison of materially similar cases. The STJ increased the previously awarded attorney’s fees by 20%, subject to the statutory limits.
Key Takeaways
- An irrevocability clause does not necessarily prevent a consumer from seeking rescission of a real-estate purchase agreement and a partial refund.
- The STJ will not use a special appeal to reinterpret contract language or reassess facts and evidence.
- Issues not addressed by the lower court lack prequestioning, and an alleged conflict of authority must be supported by a detailed comparison showing similarity between the decisions.
Why It Matters
The decision reinforces the procedural barriers governing special appeals while leaving intact a consumer-favorable judgment requiring repayment of 80% of the buyer’s installments. It also confirms the STJ’s established approach to agreements predating Law 13,786/2018: buyer-initiated rescission may result in a partial refund, with the seller retaining a reasonable amount rather than the buyer forfeiting all payments.