(Im)possibility of Down Payments Retention According to the Jurisprudence of the Superior Court of Justice

Abstract

The study aims to investigate the position of the Superior Court of Justice regarding the possibility of confirmatory down payments retention by those who did not violate the contract (article 418, Civil Code), through the analysis of recent jurisprudential decisions on the subject. It was found that the vast majority of them conclude that retention is impossible, despite the existence of a legal rule expressed to the contrary. Given the similarity of basis between the judgments (statement that confirmatory down payments are not to be confused with the prefixing of losses and damages, as they serve as a guarantee for the business and have the characteristic of initiating payment), two were select for study (AgInt no AgRg no REsp 1.197.860/SC e AgInt no REsp n. 1.893.412/SP). Then, the dogmatic assumptions necessary for the analysis of the judgments were established, so that, in the following chapter, we elaborate their critical analysis, deconstructing the constant premise of the statement that it constitutes “beginning of payment”. The applicability of article 54 of the Consumer Protection Code to the down payments is also ruled out and the down payment is analyzed int the Cancellation Law. Finally, the study seeks to answer the question about the possibility, or not, of retaining down payments according to the jurisprudence of the Superior Court of Justice, concluding that the statement regarding the impossibility of retention is inadequacy.