Post by account_disabled on Mar 12, 2024 4:06:05 GMT -5
In 1997, it was illegal to include an exchange variation clause in a contract for the transfer of external resources. And the devaluation of the real against the dollar in 1999 was an extraordinary and unpredictable event, which created extreme burdens for those who took loans in this currency. This is the understanding of retired ministers of the Superior Court of Justice Sidnei Beneti and Ruy Rosado. He died in August 2019.
STJ
Sidnei Beneti said that the exchange rate variation clause is illegal
The judges expressed this analysis in opinions commissioned by Nova Moema. In 1997, she signed a contract to obtain US$10 million from Banco Cidade. The objective was to use the funds obtained abroad to build a shopping center.
However, Nova Moema did not Portugal Mobile Number List pay the debt. With interest and monetary correction, the amount to be paid reached approximately R$350 million. The company went to court to argue that the exchange variation charge is illegal and the dollar exchange rate on the date the loan was contracted should be applied. The case is at the STJ.
In a 2011 opinion, Rosado stated that, when the contract was signed, Law 8,880/1994 prohibited the linking of obligations to foreign currencies, except for exceptions expressly provided for in federal laws. Therefore, the exchange rate variation clause is illegal, he said.
The retired minister also pointed out that the devaluation of the real against the dollar in 1999 could not be predicted and generated excessive burden for Nova Moema. Therefore, the Judiciary must produce a more reasonable solution for the debtor.
Along the same lines, Beneti, in 2019, highlighted that the Court must determine that Nova Moema and Banco Cidade share equally the consequences of the devaluation of the real in 1999.
The former judge also said that the exchange rate variation clause could not be based on Resolution 63 of the Central Bank. After all, it is an administrative rule, which does not override Law 8,880/1994.
Other side
In an opinion commissioned by Buena Companhia Securitizadora de Créditos Financeiros, jurist Arnoldo Wald , partner at Wald, Antunes, Vita, Longo and Blattner Advogados, stated that the theory of unpredictability does not apply to a contract for the transfer of external values. According to the thesis under attack, it is not possible to hold the debtor responsible for events that are impossible to predict, given their extreme rarity, and that have catastrophic consequences.
Wald pointed out that exchange rate variation is not an unpredictable and exceptional event. Furthermore, it does not generate "extreme advantage" for the financial institution. According to the lawyer, the change in the currency exchange rate is a risk inherent to the business, assumed by the debtor when contracting it.
According to the lawyer, Decree-Law 857/1969, approved by the 1988 Constitution, validates the payment agreement with an exchange variation clause.