As Arras na relação imobiliária: uma análise da jurisprudência do Superior Tribunal de Justiça à luz do Princípio da Equivalência Material dos contratos.

Abstract

It is analyzed, under the light of the principle of material equivalence of contracts, the case law of the brazilian Superior Court of Justice on the retention of the earnest money and its return plus the equivalent, in order to verify whether the aforementioned principle, in its objective dimension and from the perspective of unjust enrichment of the buyer, has been observed in cases of contract termination promoted by the seller's sole fault. It is concluded that there is a different treatment given to the buyer, given that there is no restriction on the gain that is earned when the earnest money is twice repeated, which can also be cumulated with compensation for moral damage; while the retention of the seller, in the case of the sole fault of the buyer, notwithstanding being broadly restricted, is only intended to indemnify the seller for the damages incurred, notably the administrative expenses incurred with the disclosure, marketing and brokerage, the payment of taxes and fees levied on the property and the possible use of the property by the buyer. Keywords: earnest money; pledge; token money; unjust enrichment; material equivalence; contractual balance; real state law; civil law.