The Second Section of the Superior Court of Justice (STJ, Brazil’s high court for non-constitutional federal law) established an important precedent for the banking sector. Under the repetitive appeals framework, the court held that financial institutions have the right to unilaterally terminate checking account agreements.
The judgment, which established the binding precedent under Theme 1,119, sets aside the application of restrictive rules from the Consumer Defense Code (CDC) on this matter. Following the ruling in Special Appeal (REsp) 1,941,347, stayed lawsuits across Brazil may resume, and lower courts must apply this legal thesis to similar cases.
Inapplicability of the general consumer rule
The central legal dispute involved Article 39, item IX, of the CDC. This provision prohibits product or service providers from refusing to sell goods or perform services to anyone willing to pay immediately. The issue was whether this rule prohibited banks from closing active checking accounts.
Justice Humberto Martins, the reporting judge for the repetitive appeal, clarified that this consumer protection rule cannot be generically applied to checking account terminations. He outlined two main statutory reasons:
- Nature of the contract: The CDC provision applies to immediate, spot-payment consumer transactions. A checking account, by contrast, involves a continuing contract (an agreement executed over time) characterized by an ongoing relationship and the provision of multiple ancillary services.
- Timing of the refusal: The CDC rule governs a refusal to contract before the consumer relationship begins, which is legally distinct from terminating an account that was already established.
Financial system regulations and bank obligations
The STJ emphasized that consumer protection legislation expressly provides exceptions for intermediation governed by special laws. The termination of bank accounts falls under this category, remaining subject to financial sector legislation and regulations issued by the National Monetary Council (CMN, Brazil’s highest macroeconomic and financial policy body).
Reviewing applicable rules, the reporting judge highlighted CMN Resolution 4,753/2019. This regulation governs the opening, maintenance, and closing of deposit accounts, permitting voluntary termination by either party.
While recognizing the unilateral right of banks to close accounts, STJ case law requires compliance with essential legal requirements. Financial institutions must strictly:
- Provide prior notice to the account holder;
- Fully comply with transparency and disclosure duties;
- Satisfy any remaining pending contractual obligations.
Grounds and regulatory compliance
Unilateral termination may occur for various reasons, including simple commercial disinterest by the financial institution. However, Justice Humberto Martins noted that, in many instances, closing an account is a mandatory regulatory requirement for the sector.
Circumstances involving suspected fraud or critical information not provided or rectified within the required timeframe demand immediate action by banks. Under these conditions, financial institutions are obligated to close deposit accounts to ensure regulatory compliance and uphold their systemic obligations.
The reporting judge concluded that, because banks are required to close accounts to protect economic order and the public interest, they are logically not bound by the prohibition set forth in Article 39, item IX, of the CDC.
This content is for informational purposes only and does not constitute legal advice. For guidance on specific matters, consult a qualified lawyer.
Deixe um comentário