Accumulation of lost profits and penalty clause for delay in delivery of property

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The real estate boom experienced by Brazilians in the last 10 years did not come unaccompanied by the next phase of the economic cycle: the recession.


In mid-2014, the Brazilian economy — and, consequently, the real estate industry — entered a sharp slowdown. With the weakening of the sector and the increasing default of buyers, construction companies were no longer able to deliver properties within the agreed deadline.

This contractual breach was the subject B2B Lead of numerous legal actions. Faced with the need to pacify the jurisprudential understanding, the STJ affected two special appeals, submitting to the 2nd Section the analysis of “the possibility or not of combining compensation for lost profits with the penal clause, in cases of default by the seller due to delay in the delivery of property under construction subject to a contract or promise of purchase and sale” .

The STJ's decision must have as its main guide the differentiation of the institutes, in order to conclude whether the combination of these generates bis in idem , that is, a double conviction for the same fact.

According to doctrine and legislation, the penal clause must be understood as a contractual fine to be imposed on those who negligently failed to comply with their contractual obligation. This fine, for the vast majority of jurists, has two natures: compensatory and moratorium. The first is applied when there is total non-compliance (absolute default) with the contractual obligation, while the second is used in cases where there is partial non-compliance (default) with the obligation.



Just for clarification, a parenthesis is opened: absolute default is that which exists when the debtor can no longer fulfill the agreed obligation or when its fulfillment is no longer useful to the creditor. On the other hand, delay exists when there is a delay in fulfilling a certain obligation, but it is still possible and interesting to the creditor.

As far as lost profits are concerned, this is a value capable of compensating for any loss of profit due to damage, whether contractual or extra-contractual.

Although the jurisprudence is still not peaceful on the subject, a problem that should be resolved with the judgment of special appeals paradigms, it appears that the courts have decided to combine the lost profits and the penal clause when the construction company is solely to blame for the delay in delivery of the keys, understanding that the first has a compensatory nature, while the second has a moratorium legal nature.