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The Contractual Resolution, the Return in Installments and the Jurisprudential Divergence

Updated: Aug 8, 2023



This scientific article discusses the effects of contractual termination pursuant to paragraph two of article 34 and improvements, pursuant to the same paragraph, of law 6766/79. In addition, it explores the situation in which the seller makes the payment in 12 installments, as provided for in Article 32-A. However, there is a legal divergence in relation to Precedent 1 of the Court of São Paulo, which provides for the full return in a single payment. Additionally, case law and the position of the Superior Court of Justice (STJ) on the subject are analyzed.


The contractual resolution of real estate transactions involves complex legal issues, especially when discussing the return of amounts paid by the buyer in case of termination. In this sense, the second paragraph of article 34 and the approach to improvements, as established in law 6766/79, are fundamental for us to understand the effects of this resolution, when the seller opts for payment in 12 installments, as provided for in article 32-A . However, it is important to point out that there is a divergence in case law, especially in relation to Precedent 1 of the Court of São Paulo, which determines the full return in a single payment. In addition, the position of the Superior Court of Justice (STJ) on the matter will be analyzed.


The second paragraph of Article 34 of Law 6766/79 provides for the possibility of restitution of improvements made to properties when the contract is terminated. In this context, the seller may choose to make the return in monthly installments, as established in article 32-A. This form of payment in installments provides more flexibility and financial viability to the seller and, eventually, to the buyer.


However, there is a relevant divergence in the courts regarding the return in installments, especially in relation to Precedent 1 of the Court of São Paulo, which determines the full return in a single payment. This summary is contrary to the forecast of payment in installments established by law. In this sense, there is a dissonance between the jurisprudential interpretation and the current legislation.


However, it is important to note that jurisprudence has evolved on this issue. The Superior Court of Justice has been called upon to issue an opinion on the subject and has adopted positions that consider the feasibility of payment in installments, in line with the provisions of article 32-A of law 6766/79. This position has been adopted based on the principles of reasonableness and proportionality, which take into account the seller's financial capacity and the need to guarantee reimbursement to the buyer within reasonable periods.


Conclusion:


The contractual resolution in the real estate context, when there is the option of return in installments by the seller, as provided for in law 6766/79, generates debates on the effects and obligations related to the restitution of the improvements made. In this context, the jurisprudential divergence presented by the summary 1 of the Court of São Paulo, which determines the full return in a single payment, contrasts with the legal provision of payment in installments.


However, it is important to highlight that case law has evolved on this issue and the STJ has positioned itself in favor of the possibility of payment in installments, taking into account the reasonableness and proportionality of the situation. In this way, it is essential that the parties involved in the contractual resolution process seek solutions that are in compliance with the legislation and the most recent jurisprudential decisions, guaranteeing a fair and balanced resolution for all parties involved.

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