2018 Vol. 1, Issue 2


LIMITATIONS PERIOD AND INTENTION OF REIMBURSEMENT OF BROKERAGE COMMISSION IN REAL ESTATE DEVELOPMENT AGREEMENTS: LEGAL CERTAINTY AND JUDICIAL CONSISTENCY

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LIMITATIONS PERIOD AND INTENTION OF REIMBURSEMENT OF BROKERAGE COMMISSION IN REAL ESTATE DEVELOPMENT AGREEMENTS: LEGAL CERTAINTY AND JUDICIAL CONSISTENCY

 

Sandra Reves Vasques Tonussi [*]

 

 

ABSTRACT: The goal of this article is to analyze the limitations for claim of reimbursement of the amount paid by the consumer as a brokerage commission in real estate development contracts. The issue is examined in the light of the requirements of legal certainty and judicial consistency. The intention is to describe the current panorama of jurisprudence, which results from the binding precedent edited by the Superior Court of Justice, and to make the pertinent distinctions.

 

KEYWORDS: Statute of Limitations; Commission of brokerage; Legal certainty; Judicial consistency

 

 

 ‘Neither the "dogmatic slumber" or the "ideological" sprees, the constitutional law expresses an “ethical positivism”, which, without renouncing the normative data, is founded on the priority of the values enshrined in the constitutional text.’ Anderson Schreiber

  


 

 

 

I. INTRODUCTION

Prescription deadlines raise various doctrinal and jurisprudential controversies, which have not been mitigated by the rules that propose to do so, such as the 2002 Civil Code, despite their clear intention of operability in relation to the effects of time in legal relations.

This article intends to analyze the statute of limitations that notifies the intention of reimbursement of the brokerage commission of real estate development contracts, with attention to the legal contours of the brokerage contract and of the limitations norms, and in the face of legitimate expectations and legal certainty of judicial consistency.

Notwithstanding the current jurisprudence panorama, where the Superior Court of Justice established the understanding of binding nature in the RESP 1,551,956/SP, which states that the three-year statute of limitations of the art. 206, § 3, IV, of the Civil Code concerning unjust enrichment would apply, it is intended to clarify the dispute that resulted in the edition of the precedent, and establish relevant distinction, which investigates the circumstances that resulted in the deduction of intention of reimbursement, and that could give rise to both the application of statute of limitations (the general decennial art. 205 of the Civil Code), as well as aspiring a different initial term.

It intends, therefore, to contribute to the debate, especially in regards to the proper application of the extinctive period, in order to obviate two undesirable phenomena: 1) the dogmatic violation of the limitations norms, and so, in a final analysis, the very legal security that the existence the extinctive periods aim to protect; 2) the infringement of legal coherence and equality, by giving legal solutions identical to several cases that demand, therefore, suitable distinction.

 

II. LIMITATIONS: LEGAL CERTAINTY AND JUDICIAL CONSISTENCY

When the law is violated, the passing of time, when combined with the inertia of its holder, gives rise to effects in the legal world. The existence of civil limitations, resulting in the extinction of the claim, or the effectiveness of the intention, with which the violated subjective law is endowed, is intended to promote legal certainty and to keep the social peace.

Explaining the phenomenon, Gustavo Tepedino points out that the same criticism that in the past was directed at those who contended that the limitation extinguished the action, now serves as objection to the understanding established in the Civil Code that the prescription extinguishes the claim or it hinders the effectiveness of pretense, because the author would not have lost the right to the claim.

The sanctioned lesson of José Carlos Barbosa Moreira should be highlighted: ‘Ultimately, when the Court decides based on limitations, what is understood is that the claim of the defendant has made the claim of the author ineffective (...).’

It should be remembered that, among the long and fruitful discussions held by doctrine in an attempt to scientifically differentiate the limitations and prescription norms, as a result of legal treatment identical to the one in the Civil Code of 1916, the studies of Câmara Leal and Agnelo Amorim should be highlighted, the latter having taken as starting point the classification of rights developed by Chiovenda, which fall into two broad categories: the rights provision, susceptible to violation, claimed condemnatory lawsuits and action under the limitations norms, and the potestative rights, characterized by a subordination state that their exercise creates for the other despite their will without contest, in this way unsusceptible to violation, exercised out of court or in its constituent actions, subject to prescription deadlines. It is specific of time, as Agnelo Amorim announces, that its course pacifies the jolt caused to the social fabric with the violation of the law. Such a context results in the need to set uncertain legal relations, susceptible to doubts and controversy, withdrawing the will of the holder of the right violated the exercise of the claim when they see fit, ending said uncertainty in a determined time lapse.

In his classic work, Camera Leal states that the only acceptable basis of limitations is the legal and social interest, translated by peace and social tranquility that the law seeks to ensure. Indeed, the legal security dialogues with the limitations norms, granting the passage of time the specific effects of social pacification. From a different perspective, in the application of the norm, due to the fact it acts upon the effectiveness of claims affected by legitimate rights, legal certainty now serves as the guiding principle regarding predictability.

Hence the arousal of judicial decisions concerning extinctive time limits which must keep uniformity and consistency, relating to, in this way, with equality. That is to say, to similar legal relationships, which seek claims with the same outlines, one cannot conceive of application of distinct limitations periods. And in the interpretation of the rules concerning the theme, the judge, by observing the identity of relevant circumstances, isonomic treatment should be given.

Relevant, at this point, is Roberto Freitas’ statement, in explaining the principle of the universal limitations, Hare’s universalizability, that one cannot judge in different manners ‘for similarity in contexts relevant aspects’. That is, ‘a judgment given in a particular case must be applied in relation to other cases where there is identity of situational circumstances’.

Norberto Bobbio, regarding the normative dimension, stresses that consistency is always a condition of justice and that, in the face of an antinomy, one or another valid rule can be applied, with uncertainty permeating the outcome of the trial (which the author calls free will of those who are called upon to apply the rules), the grounds which inspire the framework of the legal systems would be violated: ‘the requirement of certainty (which corresponds to the value of peace or order), and the requirement of justice (which corresponds to the value of equality ).’

Thus, both within the normative context, as well as the judicial, consistency is the premise of security, of the confidence of the subjects involved and of material justice. Normative coherence. Judicial consistency. And the limitations, as it extinguishes legitimate aspirations through the passage of time, is a norm that requires restrictive interpretation (barred the analogy), and the aforementioned uniformity of jurisprudence. Note, at this point, therefore, in the exact terms of art. 205 of the Civil Code, one should always apply the decennial period, when the law does not provide for special period for the claim.

Humberto Tan Junior, referencing Canotilho, points out that the general principle of legal certainty requires reliability, clarity, reasonableness and transparency. And repeats that everyone has the right to trust that ‘their public acts or decisions concerning their rights, positions or legal relations based on valid and legal rules in existence, binding themselves to the effects foreseen and signed by these same standards.’

Dworkin, when discussing  consistency and integrity in law, at one point, relating to Judge Hercules and the metaphor of the chain novel, states that the ideals of coherence and integrity require that ‘the judges admit, as far as possible, that the law is structured by a coherent set of principles of justice, fairness and due adjective process, and asks that they apply them to their cases, in such a manner that the situation of each person is fair and egalitarian according to the same standards.’

In the face of such a picture, and with the reality of judicial decisions concerning the statute of limitations of the intention of the reimbursement of brokerage commission in real estate development, the Superior Court of Justice, in order to equate the matter, established the understanding recorded in the RESP 1,551,956/SP, to which the three-year statute of limitations of art. 206, § 3, IV, of the Civil Code concerning unjust enrichment would apply.

Nevertheless, not only do the doctrinal discussions not cease, it seems pertinent to state that the precedent should not be applied without careful investigation of the factual circumstances surrounding the dispute, under the penalty of achieving the opposite, both of the intention of uniformity, as well as how legal certainty is understood.

 

 

 

 III. JUDICIALIZATION, CRISIS AND UNIFORMITY OF JURISPRUDENCE

 It is worth pondering about the fact that, from the legal point of view that the levying of brokerage commission by construction companies in real estate development contracts is abusive, without the obedience to the ostensible and adequate information, and more, to the nature of the accordance and legal framework of consumer protection, there was a marked increase in lawsuits seeking the reimbursement of the brokerage commission.

About the judicialization phenomenon in Brazil, the lucid reflection of Bruno Makowiecky Salles, that ‘the betting on the Judiciary has not been enough. Hence the denial itself, through the access without criteria to the Judiciary, access to the right. As is observed, one cannot disconnect the idea of access to justice and access to the right.’

It is true that such a context, however, cannot serve as a basis for the indiscriminate application of lower limitations deadlines, in an inadequate analogy with different hypotheses, under the risk of delivering undesirable decision resulting in an unfair contribution to the crisis of legitimacy of the judiciary.

What should be noted, for this reflection, in this specific aspect, is that the exercise of power, whatever its nature, should obey regulatory limits and ethical principles. But the exercise of power must also be suited to the aspirations of the people on which it is exercised. The difference here, between fair expectations and the imposition arising from such an exercise, is cause to the legitimacy crisis.

But the crisis, although revealing a situation or environment maladjusted to legitimacy, adding thus a negative value to power, in this case, the judiciary power, can lead us to a positive scenario: a more accurate reflection, reconsideration; a readjustment; to an improvement; to a fine-tuning of the legitimacy of power. The crisis should be understood for the overcoming of the maladjustment and for the subsequent adaptation to the values pertinent to that exercise and that consider themselves adjusted to the rule of the law.

An example of such a phenomenon is what occurred with Constitutional Amendment No 45. Requirements of transparency, efficiency, citizenship, access to justice and a fair critique of society and of all law operators, including judges in mea culpa, the justice system and its flaws, have created a  suitable environment for the promulgation of the amendment, which raised to a fundamental right the opportune judicial protection, created the binding effect in some hypotheses of judgments of the Supreme Court and, on the other hand, the external control of the judiciary, conducted by the National Council of Justice and the National School for Training and Improvement of Magistrates.

The new Civil Code, promulgated in March 2015, has numerous rules that equally reflect upon the same legitimacy crisis. Some causes could be identified, although they are not object of this study, and divided, only for the purpose of systematization, in two large groups.

The first is composed of causes of responsibility of the justice system itself. The second by causes of responsibility of other powers or responsibility that should be split with other organs of the State.

In the first group of causes would emerge the lack of access to justice; the delay; the ineffectiveness of our formal procedural system for the achievement of material Justice; the disregard, in face of the ever-increasing number of cases, in which most disputes deal with conflicts between people especially lacking in citizenship, creating openings for unwanted anomalies, infringing, not rarely, fundamental procedure rights, among which stand out: defensive jurisprudence (judgments without merits, judgment of admissibility  appeals negatives based on formal requirements easily surmountable), poor motivation of judicial decisions, the production of decisions that ignore the need for stability of jurisprudence (often under a justification of judicial independence, imposing to the parties, however, a true pilgrimage through our appellate system).

Thus, the edition of the Civil Code also aimed at achieving the causes referred to, honoring the relevant fundamental procedural rights, which concern, as per the lesson of Theodoro Jr., the equality of the parties and the zeal for the adversarial, as a guarantee of influence and no surprise; the main idea of a democratic process, according to criteria of procedural cooperation and participation of the parties; the right to the opportunity of the merit judicial protection; the keeping of the dignity of the human person in application of the law by the judge, according to due process, which should obey proportionality, reasonableness, legality, publicity and efficiency; the motivation of judicial decisions; the commitment to equality and the courts' confidence, enhancing safety, translated, here, as the uniformity of the jurisprudence and the strength of precedents.

In face of the judicialization phenomenon, concerning the fundamental right to judicial timely delivery, it is vital to realize that such occurs only and when compliance with the due process of law is safe kept, ensuring equality in the treatment of the parties, the contradictory, the ample defense, and is in accordance with the material law norms appropriate to the situation brought to trial (art. 5° heading and subheadings LIV and LV). It is worth mentioning that the right to judicial provision in reasonable time requires the observance of due legal process and, equally, the Justice of the decision.

Is it Marinoni’s the irreproachable lesson: ‘(...) the procedure must also be legitimate to the needs of protection of rights, as well as respect, in its arrangement, the fundamental material rights.’ On the functioning of the process, Humberto Theodoro Junior pontificates: ‘The process is not an end in itself and can only be explained as effective instrument for the implementation of the material rights.’

In fact, regarding the legislative novelty of the previous Code brought to the homeland’s legal framework through law No 11,280/06, which modified art. 219 of the Civil Code of 73, in order to admit the statement of limitations norm, part of the doctrine already pointed out that criteria for speed could not overlap the nature of the institutes, and the limitations, as the exception that they are, had to be affirmed. Or, to harmonize the antinomy with the possibility of resignation, open opportunity for expression of the prescriber. In this line of reasoning, Alexandre Freitas Câmara, has made scathing criticism ‘it seems then, we have now one more mechanism for production of sentences, regardless if they are able to produce fair results.’

It is perceived, therefore, that if the increased judicialization is a fact, the judiciary is not adverse, quite the contrary, it has been creative, to practices that aim to reduce caseloads. The limitations, however, are the legal norms which serve social pacification, stabilization, the consolidation of the legal situations, as stated in the precise lesson by Héctor Valverde. And it is not intended to diminish the overload of cases. When so used, either by means of analogy, either by a careless application of deadlines that are not consummated, refusing efficiency to any intention of legitimacy, that invariably contradictory decisions, especially unjust that can add to the crisis scenario of the legitimacy of the judiciary, are observed.

It seems relevant then to repeat that the success (legitimacy) of the judicial work, in regards to the application of the limitation period, requires uniformity of jurisprudence, in an intuitive prestige of legal safety and equity: elements constituent of the Rule of Law, but presumes, before, the careful analysis of the legal situation in face of the peculiar dogmatic of the extinctive deadlines.

 

IV. LIMITATIONS OF THE CLAIM OF REIMBURSEMENT OF BROKERAGE COMMISSION IN REAL ESTATE DEVELOPMENT CONTRACTS

It is fit to analyze, therefore, if the limitations claim for reimbursement of the brokerage commission, whether arising from the conclusion of abusive levying, whether it stems from the termination of the contract by act attributable to the supplier, is subject to the overall decennial period of art. 205 of the Civil Code or to the special three-year period provided for in art. 206, § 3, of the Civil Code, of unjust enrichment.

 

A. Real estate brokerage contract

This study focuses on the real estate brokerage contracts marketed by developers or builders.

The brokerage contract is formed by the incumbent and by the broker, which will mediate the deal with a third party. In the event, the third party is the consumer. The brokerage contract therefore exists only between the developer and broker, legal person or entity that acts on the incumbent and with partiality, pursuant to the civil law in its arts. 722 to 729, reason why the consumer is not responsible for the payment of the commission.

So, the brokerage agreement with the consumer is nonexistent. And as Judith Martins and Gustavo Haical reinforce with technical precision in a lucid study, the assumption of such debt would require obedience to minimum legal requirements, especially the clear and express manifestation of will of the consumer and the developer, supplier and debtor. Plus, there's a chance of constraint through the signing of document ‘confessing a debt,’ constituting however, a mental skepticism, able to recognize the inexistence of the debt transfer, in accordance with art. 110 of the Civil Code. The authors go further, by stating that if such a conclusion were overcome in the context of existence, the invalidity of the brokerage contract in face of the indisputable norms of the Consumer Code, with assumptions of recognition of the vulnerability and correctional norms aspiring the proper balance of the consumer relationship, with special attention to the duties of good faith, transparency and information, as policies of the arts. 4° and 6° would be invincible. The invalidity thus echoes clear.

Indeed, the responsibility for payment of the brokerage is of the hirer, in terms of what you can draw from arts. 722 and 725 of the Civil Code. Thus, the transfer of such an obligation to consumers, in real estate contracts available in the consumer market by developers or builders, has no legal support and reveals a clear abuse, which results in invalidity as infringement to the Consumer Code, especially when violated the duty to provide clear and adequate information, as has been customary.

Register that, apart from the prohibition of tie-in sale, the practice, is in reality, far more serious, because while in that one the benefit is also of the purchaser, in this one the payment is the supplier’s to debit and only he benefits.  Judith Martins’ and Gustavo Haical’s statement is precise: ‘(...) the imposition of “tied-in” debt at the closing of the real estate deals, in the case exposed, the consumer pays for two (the real estate and brokerage), but only receives one (property), for the brokerage was not hired.’

The Superior Court of Justice, however, in trial about the systematic repetitive appeals, section 938  in the RESP 1599511/SP, in 06/09/2016, established the validity of the contractual clause that transfers to the promissory buyer the obligation to pay the brokerage commission in the standalone unit promissory purchase contracts in real estate development schemes, as long as the total price previously informed at the acquisition of an autonomous unit, highlights the value of the brokerage commission.

 

B. The reimbursement intention of the brokerage commission and its statute of limitations

It should be emphasized, from a different perspective, that unjust enrichment is a general principle of law and should not be confused with the action of engorgement. Of course the misconception, as warns Héctor Valverde, ignores that it is also legal norm with defined technical parameters, included expressly in the Civil Code, in Book I of the law of obligations, Chapter IV, in arts. 884, 885 and 886.

Unjust enrichment has moral substrate attached to equity, but that only offers legality when recognized as autonomous legal category, used in engorgement actions in subsidiary and exclusive manner, that is to say, when there is no legal support to breach perpetrated to the law in other institutes of the judicial framework.

For the reimbursement of the commission, on the grounds of lack of legal relationship or due to abuse, the expected action is the reimbursement of undue payment stated in art. 42 of the Consumer Code, or of undue payment, an equally autonomous norm of the Civil Code, with its own normative outlines dictated by arts. 876 to 883, despite the fact, that in both, unjust enrichment, as legal principle that advocates that asset displacement should be justified by the law, notify the institutes.

But the claim of reimbursement of undue payment of art. 42 of the Consumer Defense Code, combats not only unjustified displacement, but sanctions actions contrary to the standards of consumer protection and defense, as Héctor Valverde highlights with technical zeal. And the claim of receiving undue payment in art. 876 of the Civil Code also rejects the unjustified displacement, but being the undue payment an act not negotiable, it presupposes an error as well, by differentiating the norm of simple unjust enrichment of art. 884 of the Civil Code. The error here is not to be confused with the category of faulty legal business. The error that says that with the undue payment just means that there was no act of liberality.

And the statute of limitations for the repetition claim or to the claim of reimbursement of undue payment is decennial of art. 205, caput, of the Civil Code, being prohibited the analogy to apply the three-year deadline of art. 206, § 3, IV, of the Civil Code concerning unjust enrichment.

Pontes de Miranda said that the rules relating to the limitation period must be interpreted restrictively, repelling the very analog interpretation. Regarding the deadlines themselves there is no gap allowing the analogy. Either the limitations submit to the general decennial term, or to special deadlines.

V. OVERVIEW OF JURISPRUDENCE AND NECESSARY DISTINCTION

 Nevertheless, the Superior Court of Justice, on trial under the systematic repetitive resources, section 938 in the RESP 1599511/SP, in 06/09/2016, established that the claim of reimbursement of amounts paid for brokerage commissions submit to the three-year period of art. 206, § 3, IV, of the Civil Code concerning unjust enrichment, which would initiate at the signing of the deal.

It is important to highlight, at this point, that art. 926 of the Civil Code establishes that the courts must standardize their jurisprudence and keep it stable and consistent. Art. 927 is directed at the judges and courts, for them to observe the decisions of the Supreme Court in a concentrated control of constitutionality; the statements of Stare Decisis; the judgments in incident of assumption of competence or resolution of repetitive demands and in trials of extraordinary appeals and special  repetitives; the statements of the precedents of the Supreme Court on constitutional matters and of the Superior Court of Justice regarding infra-constitutional matters; the guidance of the plenary or the special organ to which they are linked.

The trial of repetitive cases should be understood as a decision issued in repetitive demands resolution incident and in special and extraordinary features repetitive, as the exact hypothesis suggested.

Despite the announced linkage, there are circumstances that have required appropriate distinction of recent precedent on the Subject 938 of the Superior Court of Justice. That is because, next to the reimbursement claim established, as stated, in the absence of the contract or in abuse (which we understand, in spite of the foregoing, it is worth clarifying, to submit its claim to the general decennial term of article 205 of the Civil Code), the termination of the contract by the supplier, must necessarily be subject to the general decennial term, distinguishing the situation of legal binding precedent.

Ruy Rosado’s lesson is precise, in which it states that the judicial process is essential for the legal resolution provided for in art. 475 of the Civil Code – norm which applies to all bilateral agreements – and also to the conventional resolution, when so stipulated. And also optionally, although dismissed by law or by contract, to achieve declaratory sentence and cumulatively to enforce against the debtor and third parties against the effects of extinction for breach of obligation. The lender has various alternatives in the face of the breach, seeking compliance, the resolution, and also compensation for damages. The choice is under the free determination of the non-defaulted creditor. In face of the likely suit of the debtor, one can avail themselves of the exception of an unfulfilled contract, of direct objection against the claim or through counterclaim seeking the resolution assigning non-compliance to the debtor. In fact, presently, the requirements for the birth of the formative law of resolve, be it by impossibility of performance, or by the destruction of its interest, the resolutive action is of the lender’s free choice. The sentence is negative legal resolution, constitutive and declaratory mainly in cases of conventional resolution, but both can be executed when there is the intention of reimbursement and even compensation, once granted the request for damages.

Therefore that is why the desired distinction makes sense, in respect to the recognition of the claim for the reimbursement of the amounts paid for brokerage commission. In fact, the Superior Court of Justice, which has the role to pacify the interpretation of infra-constitutional legislation, established the understanding that applies the rule of art. 206, § 3, IV, of the Civil Code, regarding the statute of limitations of claim for reimbursement of amounts paid for brokerage commission.

It turns out that, if the commission did not reimbursement claim does not stem from any judicial review of the contract for abuse, but from a resolution for noncompliance by the supplier, it is not subject to the three-year extinctive period, as decided by the Superior Court of Justice in the RESP on 1,551,956/SP, and has distinct initial term, which is the default.

The judicialized resolution system puts the judge’s activities in the foreground, activities of increasing difficulty in that it must produce an integrating interpretation of contractual clauses, deal with legal precepts of inaccurate content and focus principles arising from the objective good faith. It seems relevant to recall the judicial reverence to rational grounding, indicating the descriptive or factual elements involved.

The claim for full reimbursement for amounts paid arising out of the breach which proved entirely of the supplier (a common cause is the delay in the delivery of the property), advocates the extinctive decennial deadline of art. 205 of the Civil Code, which starts, in prestige to actio nata, on the date of default. That is because it is only from the default, which causes the termination of the contract, which arises for the consumer, promissory buyer, the possibility of deduction in court of their claim to the reimbursement of amounts paid. Reimbursement could only be required starting from the full default, legal cause of business resolution, and timeframe for the beginning of the statute of limitations.

Thus, the understanding that the beginning of the term would be the date of payment would only occur, according to and including, the precedent of the Supreme Court, when the intended reimbursement of values arising from judicial review of the contract, because only since that moment the consumer could deduct their claim in court. A distinct hypothesis is that, it should be repeated, the reimbursement claim arising from the resolution of default by the supplier, should be the timeframe that initiates the extinctive term. Before that there is no pretense and, therefore, the inertia justifying the flow in any extinctive period is inexistent.

Specifically regarding the reimbursement of amounts paid, despite the improvement of the brokerage contract through the mediation conducted, pursuant to art. 725 of the Civil Code, if the consumer demonstrates that the unwinding of the deal stems from the default by the alienating company, i.e. due to the default by the supplier, and not by the choice of the consumer, the return of the parties to the status quo ante with the reimbursement of all amounts paid.

 

VI. CONCLUSION

 It is argued that the statute of limitations to claim of reimbursement of undue payment is the decennial in art. 205, caput, of the Civil Code, being prohibited, by the very nature of the extinctive periods, the application of analogy to impute the special triennial period in art.206, § 3, IV, of the Civil Code concerning unjust enrichment, which is legal norm with its own exclusive and subsidiary nature. Thus, the inertia of the consumer must be qualified in the course of the 10-year period, in order to conclude that the claim, which could not be exercised anymore because the conflict was pacified by the time elapsed.

But another is the current panorama of jurisprudence. The Superior Court of Justice has the understanding of binding nature in the RESP 1,551,956/SP, in which would apply the three-year statute of limitations of the art. 206, § 3, IV, of the Civil Code concerning unjust enrichment.

Nevertheless, besides the doctrinal discussions not ceasing, it seems fair to say that the precedent should not be applied without careful investigation of the factual circumstances surrounding the dispute, under penalty of achieving the reverse, both of the intention of uniformity, and of what is understood as legal certainty. So, it is necessary to distinguish the precedent in face of the hypothesis that the claim for the reimbursement of the brokerage commission arising from the resolution due to default by the supplier, who then would not submit to the triennial extinctive deadline, instead submitting to the general 10-year term established by art. 205 of the Civil Code, and would have as its initial term the default by the supplier, in prestige to actio nata.

If it is true that from the judicial consideration that would be unlawful or abusive to levy the brokerage commission for real estate marketed by builders or developers, especially in sales stand, there was a visible increase in lawsuits, it must be agreed that such a context cannot guide justifications (even when not expressed), which result in the reduction of the Statute of limitation of the claim for reimbursement, in a judicial construction that would violate the nature of the limitations norm. That is because limitation is aimed at social peace, but the time manipulation technique that law uses in its benefit, is not intended to diminish the overload of judicial cases.

The balance of legal positions of consumers and suppliers in consumer relations, as desired in brokerage contracts arising out of the sale of real estate development units, can only be achieved with the adjustment of judicial relations respective to the Consumer Defense Code in its own right, as well as obedience to dogma of the relevant norms, especially the limitations and rational analysis of the factual circumstances surrounding the dispute, both for the proper application of binding precedent, as for its distinction, so as to succeed in achieving at least the inspiration of material justice.

 

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_____. Pagamento da comissão de corretagem na compra e venda de imóvel: obrigação do fornecedor. Revista de Direito do Consumidor. v. 23, n. 91, p. 141-165, jan/fev. 2014.

Schreiber, Anderson; Konder, Carlos Nelson (Coord.). Direito Civil Constitucional (São Paulo: Atlas, 2016).

Tepedino, Gustavo; Barbosa, Heloisa; Moraes, Maria Celina de. Código Civil interpretado conforme a Constituição da República. Vol. I. 2. ed. (Rio de Janeiro: Renovar, 2007).

Theodoro Júnior, Humberto. A onda reformista do direito positivo e suas implicações com o princípio da segurança jurídica. Revista de Processo, São Paulo, n.136, p. 32-57, jun. 2006

______. Prescrição – Liberdade e dignidade da pessoa humana. Revista Dialética de Direito Processual, São Paulo, n. 40, p. 64-77, jul. 2006.

______Theodoro Júnior, Humberto; Nunes, Dierle; Bahia, Alexandre Melo Franco; Pedron, Flávio Quinaud. Novo CPC - Fundamentos e sistematização. 2 ed. (Rio de Janeiro: Forense, 2015).

 


[*]Sandra Reves Vasques Tonussi, Judge - Federal District Tribunal Court.





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