Post by account_disabled on Mar 13, 2024 0:48:31 GMT -5
The penalty must be equitably reduced by the judge if the main obligation has been fulfilled in part, or if the amount of the penalty is manifestly excessive, taking into account the nature and purpose of the transaction.
Georgerudy TJ-SP reduces fine by 90% for closing a store in a shopping mall
With this understanding, the 27th Chamber of Private Law of the Court of Justice of São Paulo reduced from R$450 thousand to R$45 thousand the contractual fine to be paid by a retailer for closing activities and returning space in a shopping mall. Campinas.
The fine of R$450,000, confirmed B2B Lead in the first instance, corresponds to 80% of the remaining time stipulated in the contract, which would end on December 31st of this year. The store owner decided to close his activities early due to the low flow of customers and the high cost of maintaining the business. Unanimously, the TJ-SP granted the retailer's appeal to reduce the fine to the equivalent of three months' rent.
"The penalty is excessive given the nature of the business and the good faith expressed by the plaintiff, who demonstrated an interest in paying a fine equivalent to three rents. There is no proof that the termination of the legal relationship occurred in a way that would harm the defendant. Nor there is evidence that the leased space remained unoccupied for a long period", said the rapporteur, judge Tavares de Almeida.
For the rapporteur, the penalty provided for in the contract, of 80% of the amount of remaining rent, imposes a disproportionate burden on the store owner. He applied article 413 of the Civil Code to the case and said that unjust enrichment of the shopping center cannot be allowed. Thus, "out of respect for the social function of the contract", Almeida voted to reduce the fine based on the principles of reasonableness and proportionality.
For lawyer Gustavo Maggioni , partner at the firm EFaigle e Maggioni , who defended the merchant, the decision is an important milestone, since retailers established within shopping malls suffered severely with the shutdown of activities for almost five months. "Many businesspeople in financial difficulty have not yet closed their activities and returned the space rented until now, due to the heavy fine imposed by the administrators," he said.
Also according to Maggioni, the law provides for the tenant's right to terminate their activities due to extraordinary and unpredictable events, as in the case of the epidemic in Brazil: "The reduction in opening hours and attendance imposed by the State Government on shopping centers creates a contractual imbalance that often leads to the closure of stores located in shopping centers.