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    Responsibility of Banks in Construction Defects and Position of the Brazilian Federal Superior Court

    Guilherme Zauli

    January 30th, by Guilherme Zauli

    Owing to the fact that the financial institution responsible for granting credit facility for the purchase of property represents, in most cases, the party with greater solvency in a contractual relationship, the inclusion of banks in lawsuits aimed at termination or compensation concerning constructive defects in financed properties has become fairly common.

    Aiming to regulate this situation, the Superior Court of Justice has just adopted a prevailing opinion about the lack of financial institutions’ liability regarding possible constructive defects in properties acquired through real estate financing directly from construction companies.

    Upon the trial of Special Appeal No. 1.992.178, STJ (Superior Court of Justice) reached a prevailing position about the absence of responsibility of such institutions for loss unrelated to the granting of credit facility, such as, without limitation, constructive defects.

    In the case reviewed by the Superior Court of Justice, a certain real estate development had its “permit to occupy a building” revoked owing to structural damage that compromised the building’s security, which led to the filing of a lawsuit seeking to terminate the purchase of a real estate unit through bank financing.

    Owing to the existence of a financing agreement with a secured fiduciary sale, the defendant construction company pleaded for the inclusion of the financial institution responsible for granting the credit as the defendant so that it would be held liable for the contractual termination with the consequent refund of consumer values.

    Nevertheless, the Superior Court of Justice, when reviewing the merits of the claim, considered the existence of two distinct legal relationships, namely: the existence of constructive defects that made the use of the asset unfeasible and the existence of a

    financing agreement without any defect or nullity upon the release of the credit granted.

    The segmentation of such analysis allowed STJ to consolidate the understanding that, as they appear only as credit-granting agents, financial institutions cannot be held liable for defects outside their duties.

    It was found that the assumption that gave rise to the contractual termination was due to the sole fault of the construction company responsible for carrying out the works, with the financial institution having no responsibility for the matter whatsoever, providing it did not have interference in the construction process of the enterprise, but solely granted credit to the consumer, which in turn, absolutely freely, chose to acquire the immovable property chosen.

    Given this setting, the terms of the judgment handed down by the Court of Appeals of the State of Maranhão were maintained, ordering that the construction company responsible for the project refunds the amounts paid by the property purchaser, in addition to paying off the mortgage in advance with the financial institution.

    To be clear, when granting credit, several factors are taken into account for setting the cost of such an operation, among which the quality of the guarantee offered, the term of the contract, as well as the existence of legal certainty as regards the operation performed. Such analyses can be summed up in the following rationale: the greater the risk for granting, the greater the cost of credit made available to consumers.

    Given this rationale, it can be concluded that the decision under review fulfills the principle of legal certainty by limiting the liability of financial institutions only to activities in which they have interference, that is, the granting/release of sums, quite positively impacting the costs of granting credit to the population at large.

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