Between Protection and Consequences: Paradigms in Tension in Contemporary Private Law

Abstract

This article critically examines the decision of the Superior Court of Justice (STJ) in REsp 1.867.209/SP, adjudicated under the system of repetitive appeals (Theme 1095), in which the Court applied Articles 26 and 27 of Law No. 9.514/97, to the detriment of Article 53 of the Brazilian Consumer Defense Code (CDC), in cases of default in real estate purchase agreements secured by fiduciary transfer of property, even when a consumer relationship is established. Using Ricardo Lorenzetti’s theory of judicial decision-making as a theoretical framework, the study contrasts the protective and consequentialist paradigms in Private Law. On one hand, it defends the application of the Consumer Defense Code as an instrument for safeguarding the vulnerable party. On the other, it analyzes the reasoning adopted by the STJ, grounded, among other factors, in the stability of the credit system and legal predictability. Based on both national and foreign scholarship, the article proposes an interpretative approach that transcends the dichotomy between protection and efficiency, assigning the judge the role of articulating the contrasting decision-making models.