The Third Panel of the Superior Court of Justice (“STJ”) reformed, in a majority decision, a judgment by the Court of Appeals of Federal District (TJDFT) regarding the enforceability of an electronic contract that was digitally signed by the parties without the execution of two witnesses.

The appeal was filed against a decision by TJDFT in which the court decided that the list of extrajudicial execution instruments established in the Code of Civil Procedure is inflexible (article 784, CPC). According to the decision of the state court, said provision states that two witnesses must sign the agreement and, in that case, agreement that the creditor was trying to enforce did not fulfil such requirement. In this context, the decision determined the dismissal of the execution without analysing the merits.

Notwithstanding that, according to the Reporting Judge, Paulo de Tarso Sanseverino, neither the Civil Code nor the Code of Civil Procedure are suitable with the currently experienced technological revolution that propel businesses, especially international contracts and bank contracts which are digitally signed. With this understanding, the Reporting Judge and the other Judges that followed his understanding considered that digital certificates (regulated and legitimated by Insfraestrutura de Chaves Públicas Brasileiras – “ICP-Brasil”) and the services provided by the website “Comprova.com” are able to replace the role of the witnesses because it would grant to the document the necessary authenticity and veracity to the electronic contract, in the same way that the witnesses would have done. In this sense, the Third Panel understood that the formal requirements provided in Article 784, CPC shall be loosen in favor of the enforceability, by means of a judicial execution lawsuit, of the electronic contract digitally signed by the parties without witnesses signature.

In his vote, Judge Ricardo Villas Boâs Cueva stated that, by operation of the law and the provisional measure that regulates the ICP-Brasil, digital certification attributes probative value to the contract, proving the existence of the relation. The executive capacity of the contract demands the fulfillment of strict requirements and not merely the proof of the existence of the contractual relationship, precisely due to the fact that it constitutes a procedural advantage. According to Judge Ricardo Villas Bôas Cueva, the list of execution instruments provided by Article 785, CPC is definite in benefit of the protection of the parties so that “there is no execution instrument without previous law providing it”. Besides that, in the case files was attached a printed document, being impossible to demonstrate that the digital signature fulfils the requirements established in the provisional measures that regulates the ICP-Brasil. With this rational he voted to maintain the TJDFT’s decision.

In the judgment of a Special Appeal, the Second Section of the Superior Court of Justice discussed about the validity of charging fees and expenses, within the scope of banking contracts, of third-party services, with the register of financial and the evaluation of the assets provided as guarantee. The topic was analyzed from a banking regularization (National Monetary Council rules) and Consumer Code standpoints.

It was considered abusive the contractual clause that determines the payment of third-party services in case there is not the adequate specification and identification of such services, since the clients has the rights to be appropriately informed about the funding increases. However, even when there is the specification of the service, if it consists in services provided by banking correspondents, it was understood that this charge is also void, if included in the contracts after February 2011, due to Nation Monetary Council’s Resolution No. 3.954.

It was considered valid, on the other hand, the expense for the evaluation of the assets given as guarantee and the clause that provides for charging of contract’s registration fees. It was stated, however, the abusiveness of the fee charging when the evaluation did not occur, and the possibility of controlling the amount charged, when verified excessive onerosity.