Conference approves statements on the Super-indebtedness Law

On August 17, 2021, the Faculty of Law of the Federal University of Rio Grande do Sul (UFRGS) and the National Faculty of Law of the Federal University of Rio de Janeiro (UFRJ) organized the “I CDEA Journey on Over-indebtedness and Protection of the Consumer UFRGS-UFRJ”.

With the enactment of Law 14.181/21 which provides for responsible credit and the treatment of over-indebtedness, updating the Consumer Defense Code, one of the purposes of the journey was to prepare statements in order to facilitate the understanding of this law by the population and of the legal community itself.

Statement 1. Those provided for in Articles 54-A whiskey 54-D of Law 14.181/21 on the prevention of consumer over-indebtedness apply to real estate credit and debt with real guarantees. Authors: Professor Dr. Fernando Martins and Professor Dr. Keila Pacheco Ferreira

Statement 2. Law 14.181/21 reinforces the constitutional dimension of the State’s duty to protect the consumer (Art. 5, XXXII of CF/1988) and the principle of prevention and treatment of over-indebtedness presupposes the application ex officio of the rules of the Consumer Defense Code in case of over-indebtedness of the natural person consumer (Art. 4, X and Art. 5, VI of the CDC), surpassing Precedent 381 of the Superior Court of Justice. Author: Prof. Dr. Dr. hc Claudia Lima Marques

Statement 3. Inadequate information in credit granting contracts may give rise to civil liability of the grantor supplier to the consumer borrower, without prejudice to other sanctions. Author: Prof. Dr. Cíntia Muniz de Souza Konder

Statement 4. The mention of the existential minimum, contained in Law 14.181/2021, must cover the theory of minimum equity, with all its doctrinal and jurisprudential applications. Author: Prof. Dr. Flávio Tartuce

Statement 5. The lack of regulation of the existential minimum, which has a constitutional origin, does not prevent the recognition of the over-indebtedness of the natural person and its determination in the concrete case. Author: Prof. Dr. Ana Carolina Zancher

Statement 6. It is considered an existential minimum, for the purposes of the provisions of Law 14.181/21, the minimum income for spending on the dignified subsistence of the over-indebted and their family, allowing them to provide for vital needs and daily expenses, in particular with food, housing, clothing, health and hygiene. Authors: Prof. Dr. Ana Carolina Zancher and Profa. Dr. André Perin Schmidt

Statement 7. The notion of the existential minimum has constitutional origin in the principle of human dignity and is self-applicable in the granting of credit and in the renegotiation of debts, aiming at the prevention and treatment of over-indebtedness of the natural person consumer, pursuant to Law 14.181.2021, with the regulation provided for in the Law, under the limit of the prohibition of retrogression, clarifying the existential minimum of consumption must be related to ‘the lowest monthly amount not taxable as income tax’ or be done by income groups, as in France, with a fixed ‘vital’ value of a minimum wage or 2/3 of the minimum wage in all cases. Prof. Dr. Dr. hc Claudia Lima Marques, Prof. Dr. Fernando Rodrigues Martins, Prof. Dr. Sophia Martini Vial and Profa. Dr. Clarissa Costa de Lima

Statement 8. To payroll-deductible credits, those that involve prior authorization by the natural person for consignment on the payroll, the provisions contained in art. 54-A to 54-D, including sole paragraph. Authors: Professor Dr. Fernando Martins and Professor Dr. Keila Pacheco Ferreira

Statement 9. Despite the veto of Article 54-E, which refers to the payroll-deductible capacity, in order to avoid over-indebtedness of the consumer and guarantee the preservation of the existential minimum in the granting of credit, it is necessary to maintain the limit on payroll-deductible credit at 30%. Author: Prof. Dr. Rosângela Lunardelli Cavallazzi

Statement 10. In case of over-indebtedness of the military of the Armed Forces, for the maintenance of the principle of the existential minimum, the judge may consider inapplicable art. 14, § 3O of MP 2.251-10/2001. Author: Prof. Dr. Andréia F. de Almeida Rangel

Statement 11. Conceptually and by definition, payroll-deductible credit provided for in MP1061/21 constitutes irresponsible credit. Author: Prof. Dr. Rosângela Lunardelli Cavallazzi

Statement 12. THE prior consultation on the existence of a consignable margin by the creditor is a condition for formalizing the consigned credit agreement (art. 54-G, §1). Author: Prof. Dr. Ana Carolina Zancher

Statement 13. The renegotiation of debts, both in the conciliatory and preventive phase, and in the judicial phase, must include the consigned credits and verify that the care required by Article 54-G, paragraph one has been complied with. Author: Prof. Dr. Ana Carolina Zancher

Statement 14. Consumer harassment, as a gender, is present in all aggressive commercial practices that limit the consumer’s freedom of choice and, when considering the different coercive practices, the heightened vulnerability and the processing of data for targeted and programmed consumer offers, the species of: harassment of consumption by undue persuasion are identified; harassment of consumption by data personification; harassment of qualified consumption, in the case of consumers with aggravated vulnerability and harassment of consumption aggravated by a premium. Author: Prof. Mother Vitor Hugo do Amaral Ferreira

Statement 15. The offer of credit, upon capital remuneration, with the proposal of a real guarantee, is unusual and unusual for the contractual type, since it is specific to real estate financing, thus clearly violating the fundamental rights of housing and housing , with the intention that, in the event of over-indebtedness, the debtor is not entitled to treatment, including debt renegotiation, as there is express prohibition in Law 14181/21, not to apply to real estate credit or real guarantees. Authors: Prof. Me. Vitor Hugo do Amaral Ferreira and Prof. Dr. Diógenes Faria de Carvalho

Statement 16. For the exclusion of the prevention and treatment of over-indebtedness, according to Art. 54-A, para. 3 in fine of the CDC, as an exception rule, one must interpret restrictively and pay attention to the combination of high value and superfluity of products and services, one or the other alone not being enough; and must be determined on a case-by-case basis. Author: Prof. Dr. Ana Carolina Zancher

Statement 17. With the entry into force of Law 14.181/21, it is recommended that Brazilian courts implement Conciliation and Conflict Mediation Centers for the pre-procedural conciliation (art. 104-A of the CDC) of consumer debts, payable and falling due , which compromise the minimum existential of the natural person and in good faith consumer. Author: Prof. Dr. Clarissa Costa de Lima

Statement 18. The unjustified non-attendance of any creditor, or its attorney with special and full powers to compromise, at the conciliation hearing before the SNDC bodies will result in the suspension of the enforceability of the debt and the interruption of the late payment charges. Authors: Professor Dr. Fernando Martins and Professor Dr. Keila Pacheco Ferreira

Statement 19. In the process for over-indebtedness for the review and integration of contracts, the judge will take into account the conduct of credit providers with regard to: a) compliance with the duties of information, clarification and verification of the consumer’s credit conditions, and may apply ex-officio the sanctions provided for in the sole paragraph of art. 54-D; b) acceptance or refusal to cooperate in the renegotiation or amicable payment plan. Author: Prof. Dr. Clarissa Costa de Lima

Statement 20. The sanctions provided for in article 54-D, sole paragraph apply to administrative proceedings within the scope of the National Consumer Protection System. Author: Prof. Dr. Flávia do Canto

Statement 21 – The process for over-indebtedness for review and integration of contracts and renegotiation of debts provided for in art. 104-A and 104-B of the CDC, with the wording given by Law 14.181/21, is a special procedure and the provisions contained in §§2 and 3 of art. 330 of CPC/15, which would impose on the over-indebted consumer the payment/deposit of the uncontroversial value, a barrier to accessing justice that would harm the purpose of the law to combat social exclusion (Art. 4, X of the CDC). Author: Prof. Dr. André Perin Schmidt Neto

Statement 22. Article 104-A. In compliance with the right to broad access to justice, free legal aid or the collection of court costs at the end of consumer over-indebtedness processes must be granted. Authors: Prof. Dr. Cíntia Muniz de Souza Konder and Prof. Dr. Andréia F. de Almeida Rangel

Statement 23. Art. 51, XVII of the Consumer Protection Code, introduced by Law No. 14.181/2021, densifies the fundamental rights to access to justice and protection of the consumer in court (art. 5, XXXV and XXXII of the Federal Constitution), in order to prevent that the use of alternative means of dispute resolution, in the judicial or extrajudicial scope, whether based on analogue or digital solutions, may serve as a condition or form of limiting consumer access to the Judiciary, under penalty of offense to the prohibition of retrogression Social. Authors: Prof. Dr. Guilherme Magalhães Martins and Prof. Dr. Luis Alberto Reichelt

Statement 24. The new wording given to art. 51 of the CDC, with the insertion of item XVII, confirms the right of access to the Judiciary bodies of Art. 6, VII and the prohibition of arbitration clauses in consumer contracts with natural persons (Art. 5, VII of the CDC) . Author: Prof. Dr. André Perin Schmidt Neto

Statement 25. It is the supplier’s responsibility to prove compliance with the duties of good faith imposed by articles 52, 54-B, 54-C and 54-D of the CDC, in order to avoid the sanctions provided for in the sole paragraph of Article 54-D. Author: Prof. Dr. André Perin Schmidt Neto

The event was supported by the Brazilian Institute of Consumer Policy and Law (Brasilcon), the Institute of Humanist Capitalism, the Brazilian Institute of Contract Law, the Consumer Desk at PUCRS, the CNPq Research Group ‘Mercosul, Consumer Law and Globalization’ UFRGS, from the CNPq Research Group ‘The Symbiosis between the Public and the Private’ UFRJ and from the Alumni Association of the Faculty of Law at UFRGS.

Counting as a whole with intense participation of professors, undergraduate and graduate students from UFRGS and UFRJ, as well as the Federal Universities of Minas Gerais, Uberlândia, Grande Dourados, Mato Grosso do Sul, Pelotas, Santa Maria, Federal Fluminense, PUC-RS, PUC-Rio, PUC-PR, PUC-SP, Uninove, Unisanta, Imed, Uniritter, Unifra, UniSUAM, from UIP-São Paulo, in addition to external participants from Bolivia, Guinea-Bissau and Argentina, from the Consumer Defense Commissions of OAB-RS, OAB-PR and OAB-PE and from IDEC-São Paulo.

The online event was coordinated by Profa. Dr. Claudia Lima Marques (UFRGS), Profa. Dr. Andreia F. de Almeida Rangel (UFRJ), Profa. Dr. Rosângela Lunardelli Cavallazzi (UFRJ-PUC-Rio), Prof. Dr. Flávia do Canto Pereira (UFRGS-PUC-RS), Prof. Ms. Laone Lago (UFF-UniSUAM) and Prof. Dr. Lúcia D’Aquino (UFGD).