ASPECTOS LEGAIS E JURISPRUDENCIAIS SOBRE RESCISÃO DE CONTRATO DE COMPRA E VENDA DE BEM IMÓVEL EM ALIENAÇÃO FIDUCIÁRIA

Abstract

This paper discusses legal aspects and jurisprudence on the unilateral termination by the buyer of contracts for the purchase and sale of real estate under fiduciary alienation, based on a theoretical provision. Considering that it is a relationship of consumption, the proposals of article 53 of the Consumer Protection Code (CDC) are also presented and discussed, which states that the clauses establishing the total loss of the installments paid by the promising buyer are null and void, in case of default and contract termination. The present theme still generates controversy in the legal environment. Nevertheless, the issue is pacified by Precedent 543 of the Superior Court of Justice (STJ), which, as a precaution, established the total or partial refund of the installments paid, in a reciprocal manner a promising buyer a promising seller / builder, in the hypothesis of contractual resolution. Based on the study, a proposal is made on the possibility of the buyer undertaking to terminate the purchase and sale contract guaranteed in fiduciary alienation, by reimbursement of the installments already paid in successive installments of the contract, as well as the verification of the possibility of application of the necessary joint agreement between the promising seller and the financial institution. 1 Associação dos Advogados do Estado de São Paulo AASP. 2 Tribunal de Justiça do Estado de São Paulo TJSP.