Contractual early maturity clause
Contractual early maturity clause – TJSP decides on validity, enforceability and abusiveness
On August 2nd, the Court of Appeals of the State of São Paulo (TJSP), in the judgment of Interlocutory Appeal No. 2152205-43.2024.7.26.0000, decided to dismiss the appeal filed by the guarantors of a Bank Credit Note against a credit cooperative. The appeal sought to annul the execution, claiming that the instrument would expire only in 2025, and, therefore, was not enforceable at that time. The argument was based on article 803, I of the Brazilian Code of Civil Procedure, which provides that the execution is null and void if the corresponding obligation is not certain, liquid and enforceable.
They also argued that it was an agreement imposed by the credit cooperative in a “pre-prepared model for simple consultation and adhesion”, being, therefore, an abusive collection proceeding, based on Article 51 of the Brazilian Consumer Protection Code, in the sense that contractual clauses that establish obligations considered abusive are null and void.
TJSP, however, rejected the claim, agreeing with the decision of the first court judgment, favorable to the credit cooperative that determined that the debt was due, as there was an express provision in the agreement stating that the default of one installment would result in the early maturity of the others.
The early maturity clause, very common in banking agreements, has already generated long debates in court, since it allows the creditor, in case of default of one of the installments by the debtor, to accelerate the installments due and enforce the instrument at its full value. Such clause usually also allows for acceleration in the event of other default events under the agreement, such as bankruptcy filing, non-compliance with obligations described in the agreement, among others.
In this case, in addition to the judge accepting the possibility of full acceleration of the agreement, he also stressed that the clause is not unfair and that this is already a common understanding of the TJSP, highlighting other judgments in this regard, such as Interlocutory Appeal No. 2007851-56.2023.8.26.0000, of July 2023, which clarified that the early maturity clause in the event of contractual default is intended to protect creditors from greater losses, as well as that it would be unreasonable to require that creditors have to wait until the final maturity to seek their right, emphasizing, finally, the “principle of autonomy of will”.
Such principle consists of the idea that people can generate norms and obligations for each other through agreements, which are entered into based on their individual wills.
With this, he rejected the claim of abusiveness in the collection proceeding, making the early maturity clause a valid and enforceable provision, thus bringing more legal certainty to banking agreements.
