Post by account_disabled on Mar 11, 2024 21:48:19 GMT -7
The 2nd Section of the Superior Court of Justice decided to submit Topic 938 to a review/distinction procedure, with the purpose of defining whether one of the theses set out in the repetitive is applicable to the hypotheses in which the request for refund of the brokerage commission is based not on abusiveness of a contractual clause, but on the alleged fault of the construction company for terminating the contract, and also defining whether the applicable statute of limitations is three years or ten years.
reproduction
Reproduction STJ will define application of Theme 938 and whether prescription is three-yearly or ten-yearly
Theme 938 deals with the "incidence Portugal Mobile Number List of the three-year statute of limitations on the claim for refund of amounts paid as a brokerage commission or technical-real estate assistance service, SAT, or similar activity, article 206, paragraph 3, item IV, of the CC ".
To define the controversy, the panel selected REsp 1,897,867 as a representative resource and instituted Pet 14,369. With the initiation of the procedure, the collegiate considered it necessary to suspend ongoing processes, for the sake of legal certainty, limiting the suspension "to special appeals and grievances in special appeal pending in the second degree courts".
The appeals rapporteur is Minister Paulo de Tarso Sanseverino, who highlighted that Topic 938 was decided in a claim whose cause of action was related to the abusiveness of the contractual clause that transfers the obligation to pay the brokerage commission to the buyer.
However, according to the judge, the court's Precedents Management Center identified a multiplicity of resources in which the thesis is intended to be applied in cases in which the construction company (or developer) would be to blame for the termination of the contract.
Formation of qualified precedent
According to Minister Sanseverino, the two issues to be resolved in the appeals are: applicability of Theme 938 to cases of termination of the contract due to the fault of the construction company/developer, and the statute of limitations, ten years or three years, in the case of a request for refund based on the hypothesis of default.
Thus, Sanseverino understood that it was prudent to introduce the review/distinction of Theme 938, with regard to the applicable statute of limitations, with the aim of allowing the second degree courts to deny further special appeals related to the controversy, thus avoiding the rise of several appeals to the STJ.
At the same time, REsp 1,897,867 was affected, dealing with the statute of limitations in the specific case of "termination of the contract due to the fault of the construction company/developer, due to delay in delivery of the property".
When proposing the initiation of the procedure, the rapporteur also recalled that the STJ already has jurisprudence on the subject, but the judgments do not have the binding effect typical of repetitive ones, making it necessary, therefore, to set a qualified precedent on the subject.
Finally, the rapporteur gave interested parties the opportunity to express themselves in the case, as amici curiae , without prejudice to the procedural progress.
What are repetitive appeals
The Code of Civil Procedure regulates, in article 1,036 et seq., judgment by sampling, through the selection of special appeals that have identical controversies. By affecting a process, that is, sending it for trial under the repetitive procedure, ministers facilitate the solution of demands that are repeated in Brazilian courts.
The possibility of applying the same legal understanding to different processes saves time and legal certainty. On the STJ website, it is possible to access all the topics affected, as well as find out the scope of the overrun decisions and the legal theses established in the judgments, among other information. With information from the STJ advisory.
reproduction
Reproduction STJ will define application of Theme 938 and whether prescription is three-yearly or ten-yearly
Theme 938 deals with the "incidence Portugal Mobile Number List of the three-year statute of limitations on the claim for refund of amounts paid as a brokerage commission or technical-real estate assistance service, SAT, or similar activity, article 206, paragraph 3, item IV, of the CC ".
To define the controversy, the panel selected REsp 1,897,867 as a representative resource and instituted Pet 14,369. With the initiation of the procedure, the collegiate considered it necessary to suspend ongoing processes, for the sake of legal certainty, limiting the suspension "to special appeals and grievances in special appeal pending in the second degree courts".
The appeals rapporteur is Minister Paulo de Tarso Sanseverino, who highlighted that Topic 938 was decided in a claim whose cause of action was related to the abusiveness of the contractual clause that transfers the obligation to pay the brokerage commission to the buyer.
However, according to the judge, the court's Precedents Management Center identified a multiplicity of resources in which the thesis is intended to be applied in cases in which the construction company (or developer) would be to blame for the termination of the contract.
Formation of qualified precedent
According to Minister Sanseverino, the two issues to be resolved in the appeals are: applicability of Theme 938 to cases of termination of the contract due to the fault of the construction company/developer, and the statute of limitations, ten years or three years, in the case of a request for refund based on the hypothesis of default.
Thus, Sanseverino understood that it was prudent to introduce the review/distinction of Theme 938, with regard to the applicable statute of limitations, with the aim of allowing the second degree courts to deny further special appeals related to the controversy, thus avoiding the rise of several appeals to the STJ.
At the same time, REsp 1,897,867 was affected, dealing with the statute of limitations in the specific case of "termination of the contract due to the fault of the construction company/developer, due to delay in delivery of the property".
When proposing the initiation of the procedure, the rapporteur also recalled that the STJ already has jurisprudence on the subject, but the judgments do not have the binding effect typical of repetitive ones, making it necessary, therefore, to set a qualified precedent on the subject.
Finally, the rapporteur gave interested parties the opportunity to express themselves in the case, as amici curiae , without prejudice to the procedural progress.
What are repetitive appeals
The Code of Civil Procedure regulates, in article 1,036 et seq., judgment by sampling, through the selection of special appeals that have identical controversies. By affecting a process, that is, sending it for trial under the repetitive procedure, ministers facilitate the solution of demands that are repeated in Brazilian courts.
The possibility of applying the same legal understanding to different processes saves time and legal certainty. On the STJ website, it is possible to access all the topics affected, as well as find out the scope of the overrun decisions and the legal theses established in the judgments, among other information. With information from the STJ advisory.