Leasing cannot include an advance payment clause, says STJ

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The clause in a leasing contract ,  which authorizes the collection of installments due in the event of early termination of the contract due to loss of the asset through no fault of the lessee, is null and void. This was the understanding applied, unanimously, by the 3rd Panel of the Superior Court of Justice, maintaining the previous decision of the Court of Justice of Rio de Janeiro.


The discussion revolved around a request filed by the Consumer Protection Commission of the Legislative Assembly of RJ, supporting the abusiveness of the clauses and the enrichment of the financial institutions that applied them.

The TJ-RJ established that the return of amounts unduly paid by contractors occurred in a simple manner and ordered institutions to refund, in double, all amounts charged irregularly. Furthermore, it determined that they must present an individual record that allows checking the effective duration of lease contracts signed in the last 10 years.

The institutions then appealed to the STJ claiming that the consequences for the loss of the asset should be borne exclusively by the lessee, and the installments relating to the consideration for the temporary use of the asset should be paid, under penalty of denaturing the legal qualification of the contract.

No justification
In the decision, the rapporteur, minister B2B Lead Nancy Andrighi, stated that given the lack of justification capable of overcoming the conclusions of the TJ-RJ ruling, there are no reasons to reform them. The rapporteur partially granted only to restrict the conviction to the possibility of collecting overdue installments in the event that the lessee had taken out insurance to protect the leased asset.


For the minister, the nature of the leasing contract is synagmatic. "The advance collection of the Guaranteed Residual Value does not decharacterize the leasing contract as a purchase and sale of installments. Given the lease content existing in the lease contract, the first obligation of the lessor/lessor consists of the delivery of the thing without which the contract cannot fulfill its economic function", he said.

"The provision that becomes impossible to be fulfilled with the loss of the asset due to force majeure or unforeseeable circumstances is that which is the responsibility of the lessor to make available for the use and enjoyment of the lessee, with the payment of the installments owed by the lessee being the related provision which remains capable of being exercised", he added.

The minister also defined the scope of the decision by stating that "the effects and effectiveness of the sentence are valid throughout the national territory, as they are not limited to geographical boundaries, but to the objective and subjective limits of what was decided".



The minister also highlighted that the rules of risk theory to be applied to the lease contract are not to be confused with the rules of the purchase and sale contract with reservations of ownership.

“The asset subject to a leasing contract may be, under the rule contained in article 7 of Bacen resolution 2,309/96, subject to guarantee through an insurance contract, through which the lessor has an interest in obtaining a profit at least partially protected by insurance compensation. In this case, neither the property, which was lost, nor the insurance compensation are passed on to the lessee, this being the part that is private, despite the absence of fault. The benefit to which you are entitled, which is to have the asset at your disposal,” he said.