On May 8, 2019, Topics 970 and 971, previously affected by the 2nd Section of the Superior Court of Justice (“STJ”), were decided under the repetitive appeals system. The decisions have significant consequences to the real estate market, especially to the real estate development sector.

Topic 970 deals with the possibility of any claim of lost profits be presented together with the claim of a compensatory fine in cases of delayed delivery of real property under construction. The Special Appeals (REsp 1,498,484 and REsp 1,635,428) affected were both dismissed. According to the reporting judge, Justice Luis Felipe Salomão, the compensatory fine has a remedy nature, aiming to pre-fix the compensation due in case of any delay. Therefore, it shall not be added to the lost profits, in order to avoid unlawful enrichment. The following thesis was established: “The compensatory fine is intended to compensate for the late default of the obligation and, at a reasonable and sufficient level for the redress of the damage, it is not possible to be combined with claims regarding the loss of profits.”

The other topic decided was Topic 971, which deals with the possibility of reversing against the real estate developer the very same compensatory fine agreed to be applied against the consumer in case of default by the latter. The fine would then by applied in favor of the consumer in cases of delay. The Special Appeals 1,614,721 and 1,631,485 were partially accepted. It was decided that the stipulation of penalty solely against the acquirer in case of default was abusive. In such cases, the reversal of the penalty against seller shall thus be applied. The thesis was established in accordance with the reporting judge vote, and the composing of the statements will be presented at the next session.

Incidentally, the 2nd Section had already decided a matter of order, understanding that in the pending litigations that deal with the subject matter of the Topics 970 and 971, in the sense that Law 13,786/2018 (known as the “Lei dos Distratos”) is not applicable. Such statute disciplined the hypotheses of contractual default and respective penalties, in the scope of real estate developments and land subdivisions. Therefore, the lawsuits that discuss such matters, before the Law 13,786/2018, shall follow the decisions of Topics 970 and 971.