Background
A purchaser sought rescission of a real-estate purchase agreement secured by a fiduciary transfer and the return of amounts paid. The trial court rejected the claims, but the São Paulo appellate court reversed. It treated the fiduciary clause as invalid because the seller, developer, and fiduciary creditor were effectively the same entity, characterizing the arrangement as a disguised installment sale designed to hinder consumer rescission rights. Applying the Consumer Defense Code, it ordered the return of 80% of the payments.
In a special appeal, the reporting justice held that Law No. 9,514/1997 governed the agreement, vacated the state appellate judgment, and reinstated the trial court’s ruling. The purchaser then filed an internal appeal, arguing that STJ Theme 1,095 did not cover an allegedly abusive and simulated fiduciary arrangement and that rejecting the state court’s factual findings would require impermissible reexamination of the evidence.
The Court’s Holding
The Fourth Panel unanimously denied the internal appeal and preserved the ruling granting the special appeal. It held that Law No. 9,514/1997 applies to a purchase agreement secured by fiduciary transfer even when the seller and fiduciary creditor are the same person or entity. Article 22 permits individuals and legal entities—including parties outside the Real Estate Financing System—to use this form of security.
The court rejected the contention that the overlap among seller, developer, and creditor made Theme 1,095 inapplicable or rendered the fiduciary clause abusive or simulated. Under the STJ’s precedents, a purchaser’s decision to abandon such an agreement constitutes anticipatory nonperformance, triggering the procedures in Articles 26 and 27 of Law No. 9,514/1997 rather than the refund rule in Article 53 of the Consumer Defense Code. The Panel also declined to increase attorneys’ fees for the internal-appeal proceedings.
Key Takeaways
- STJ Theme 1,095 applies even when the real-estate seller and fiduciary creditor are the same person or entity.
- A purchaser’s request to terminate a fiduciary-secured sale may constitute anticipatory nonperformance governed by Articles 26 and 27 of Law No. 9,514/1997.
- The identity of the seller and fiduciary creditor does not, by itself, convert the transaction into a disguised installment sale or displace the statutory fiduciary-transfer regime.
Why It Matters
The decision limits attempts to bypass Brazil’s statutory foreclosure and reimbursement framework merely because a developer financed its own sale and also served as fiduciary creditor. For real-estate developers, purchasers, and counsel, the parties’ overlapping roles alone will not support application of the Consumer Defense Code’s general rescission-and-refund rule.
The ruling also confirms that purchasers who announce their intention to stop performing cannot necessarily obtain an immediate court-ordered percentage refund; recovery instead follows the specialized procedures and distribution rules of Law No. 9,514/1997.