Post by account_disabled on Mar 12, 2024 4:08:46 GMT -5
The theory of unforeseeability does not apply to contracts for the transfer of external resources. After all, exchange rate variation is a risk inherent to the business, assumed by whoever takes out the loan. This is the understanding of jurist Arnoldo Wald , partner at Wald, Antunes, Vita, Longo and Blattner Advogados.
Disclosure
Arnoldo Wald said that the theory of unpredictability does not apply to an external transfer contract
Wald expressed this analysis in an Portugal Mobile Number List opinion commissioned by Buena Companhia Securitizadora de Créditos Financeiros. In 1999, Nova Moema signed a contract to obtain US$10 million from Banco Cidade. The objective was to use the funds obtained abroad to build a shopping center.
However, Nova Moema did not pay the debt. With interest and monetary correction, the amount currently to be paid to Buena reached approximately R$350 million. The company went to court to argue that charging the exchange rate variation is illegal and the dollar exchange rate on the date of contracting the loan should be applied. The case is in the Superior Court of Justice.
In an opinion, Arnoldo Wald stated that the theory of unforeseeability does not apply to a contract for the transfer of external values. According to the thesis under attack, it is not possible to hold the debtor responsible for events that are impossible to predict, given their extreme rarity, and that have catastrophic consequences.
Wald pointed out that exchange rate variation is not an unpredictable and exceptional event. Furthermore, it does not generate "extreme advantage" for the financial institution. According to the lawyer, the change in the currency exchange rate is a risk inherent to the business, assumed by the debtor when contracting it.
According to the lawyer, Decree-Law 857/1969, approved by the 1988 Constitution, validates the payment agreement with an exchange variation clause.
The jurist also highlighted that the cumulative collection of late payment and remuneration interest does not constitute abusiveness. He further assessed that it is lawful to charge the transfer