Artigos - Postado em: 15/10/2012

(English) The inertia of the creditor and its consequences

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The non-exercise of rights established in the contract by not foreseeing immediate losses generated by the inertia of action is business practice in Brazil. However, contracting parties should be aware of the principles enshrined in Civil Code of 2002, which strengthened or even dictate new behaviors by penalizing the passivity of the people who sign contracts.

We may point out, in this sense, two institutes: the prohibition of contradictory behavior and the duty to mitigate the loss.

The first one deals with the maintenance of consistency in the behaviors in a certain business relationship. In other words, it concerns the trust aroused in the other party in the sense that this initial behavior will be maintained. The contradictory behavior, in these terms, are set by the absence of exercise of a right established by contract for a period enough to create the expectation that it will never be implemented.

That is, the party who tolerates delay in receiving requital without the proper accrued interest and monetary adjustment, or even ceases to apply contractual adjustments in due course, is in serious danger of being unable to do so in the future, through the fault of its inertia repeated in time. Due to the inertia such interest and corrections, as well as readjustment, can no longer be charged (concerning the past) by putting at stake the trust generated in the other party.

In 2004, the author Véra Fradera anticipated the discussion on the subject while reporting a case decided in France – and that caused great impact in Brazil – where the lessor was unable to invoke the termination clause in a lease by allowing the lessee to stay eleven (11) years without paying rent! The case – known as Bailleux c. Jaretty – illustrates the deprivation of a right under the prohibition of the act contradictory to prior behavior.

It is possible to find various rulings of Brazilian courts in the same sense. In this regard, the recent decision pronounced by the Court of Justice of São Paulo (TJSP) on 06.28.2012, in which the lessee was prevented of pleading the payment of contractual adjustment for having received over four (4) years of rental payment without including this adjustment. Consider:

“(…) Aluguéis recebidos pela locadora, durante mais de quatro anos, sem a incidência do reajuste anual previsto no contrato. Impossibilidade de se pleitear tais verbas. Direito não exercido pela locadora-apelada. Exercício neste momento que se revela contraditório com a postura adotada outrora. Princípio da boa-fé objetiva (art. 422 do CC). Institutos do “venire contra factum proprium” e da “supressio”. Possibilidade de ser considerada suprimida determinada obrigação contratual ante o não exercício do direito correspondente pela locadora. Postura que gera, na locatária, a legítima expectativa de que esse não exercício prorrogar-se-á no tempo. (…)”[1]

It is noted that the prohibition of the contradictory behavior highlights a figure increasingly demanded in current relationships: the duty of loyalty, in other words, the requirement that the parties behave in an honest and reliable way in legal relations in which they are involved.

As for the duty to mitigate the proper loss, institute imported from the American doctrine – known as “the duty to mitigate loss” – is related to the duty of taking all the necessary and possible measures and precautions so that your loss does not become worse. Such prerogative was included in Statement 169 of the Federal Justice Council – CJF, Let us see:

“Enunciado 169 – Art. 422: O princípio da boa-fé objetiva deve levar o credor a evitar o agravamento do próprio prejuízo.[2]

In this regard, a creditor who does not care to minimize their loss could be trimmed of any possible payment for damages by the debtor by having contributed in a negligent way increasing loss.

In 2010, the first decision to this effect was issued by the Superior Court of Justice (STJ), which recognized a duty to mitigate the proper loss. The case is a contract of purchase and sale in which the purchaser remained in the possession of the property for seven (7) years without paying the price negotiated in the sale. In that decision, the Supreme Court pointed out the duty of the parties to follow a conduct guided by loyalty, honesty and cooperation, in a way that they should take the necessary measures so that the damage is not worsened. Thus, as the seller remained inert for several years without taking any action against the buyer / debtor, he was deprived of the collection of one (1) year of loss.

It is easy to identify that the current case law and doctrine are adapting to no longer accept manipulation of concessions previously held as tools of business strategy. Along the same lines, the legal vision began penalizing, as well, those who passively accept the default condition.

Thus, the contracting parties must effectively exercise their rights whenever necessary or ,not desiring them, to take all measures necessary to ensure that such behavior does not give rise to the loss of the right.

The Chenut Oliveira Santiago – Law Firm has a staff of professional experts in the analysis of contracts, claim prevention, debt recovery and litigation concerning contracts and is able to offer the fullest service regarding the demands which involve the topic covered in this article.

[1] TJSP. Apel. 0023257-11.2010.8.26.0000, Rel. Des. Francisco Occhiuto Júnior, 32ª Câmara de Direito Privado, Julgado em 28/06/2012.

[2] Enunciado elaborado na III Jornada de Direito Civil.

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