Contracts in Brazilian Law: Types, Elements, and Obligations
**Legal Nature of Contracts**
- Bilateral: Both parties agree.
- Consensus: Perfect agreement with the will.
- Paying: Both sides have obligations.
- Non-Formal: The exception is the exchange of real property, which requires a formal contract.
- Commutative: We know exactly what will change.
Contract for Sale
Concept
A contract in which one person hands movable property to another, allowing them to sell it, and obligating them to pay a previously set price or return the goods within the agreed time.
Parties
- Consignor: Delivers the goods.
- Receiver: Receives the goods to sell.
Donation (Doação)
Concept
Article 538 of the Brazilian Civil Code defines donation as a contract in which one person, out of generosity, transfers assets or benefits from their estate to another’s.
Parties
- Donor: Delivers the goods.
- Donee: Receives the goods.
Requirements
- Animus donandi (subjective element): The willingness to donate; the intention to practice generosity. This intention does not coincide with the reason but with the cause of the donation. If there is no consideration, the cause is generosity.
- Decrease in equity (objective element): Transfer of assets to the donee’s estate. If an act does not decrease the donor’s equity, it is not a donation.
Features
- Consensual: Delivery of the thing is not required. Once a person declares their intent to donate, the other party can go to court to enforce the delivery. The donation creates an obligation to deliver, not a transfer of ownership.
- Free: No fee or charge is imposed on the beneficiary.
- Unilateral: Creates an obligation only for one party. Acceptance can be implied, presumed, or express.
- Formal: Generally written, regardless of the delivery. However, small donations of movable property are real contracts, depending on tradition.
Types of Donation
- Pure and simple
- Salary: Donation due to a benefit received, for merit.
- Onerous
Is every donation an act of generosity? No. For example, the provision of a service is a voluntary donation but not simply a donation. Marriage with total separation of property is a donation but is not considered a doação. Remission (forgiveness) of debt is not legally a donation. A waiver is not considered a doação. Our legal theory adopted the contract for donation, requiring acceptance by the grantee.
Lease (Locação)
Concept
A contract where one party grants the other the use and enjoyment of a non-fungible thing, temporarily and for a fee.
Parties
- Landlord/Lessor/Owner: Usually the property owner.
- Tenant/Lessee: Rents the property.
Legal Nature
- Bilateral: Creates obligations for both parties.
- Consensual: Formed by the simple agreement of the parties.
- Paying: Both parties gain an advantage: the landlord receives rent, and the tenant gains the right to use the property.
- Commutative: Obligations are pre-defined and do not involve risk.
- Non-Formal: Can be written or verbal, by public or private instrument. The form is free. Written form secures rights like preference in case of sale.
- Temporary: Does not include a perpetuity clause.
- Successive Tracts: Obligations continue throughout the lease duration.
A lease is a consensual contract, not requiring the delivery of the goods for its conclusion, unlike a loan agreement, which is the free loan of non-fungible things.
Elements of the Lease Agreement
- Price: Essential; without it, it would be a loan. Must be determined or determinable, may vary according to indexes. Usually paid in installments.
- Thing: Can be movable or immovable. Movable property must be non-fungible; otherwise, it would be a loan agreement. Consumable movables (e.g., electricity) cannot be leased. Examples of leasable movables: movies, books, party clothes.
- Consent: The person leasing must have administration power. The tenant must be external to the contract.
Obligations of the Lessor (Article 566)
The owner must maintain the object in the same state as at the time of the contract. The tenant is responsible for minor repairs.
Obligations of the Tenant (Article 569)
Contract Duration (Articles 571, 572)
Right of retention: The tenant’s right not to return the thing until receiving credit owed by the landlord.
Relationship After Expiration of Contract Duration (Articles 573, 574, 575)
If the landlord wants to recover the property in an indefinite-term lease, they must notify the tenant within 30 days.
Lease Termination by Sale (Article 576)
The general rule is that sale terminates the lease. A new purchaser is not required to comply with the existing contract, but parties can agree to maintain the relationship, requiring registration.
Death of a Party (Article 577)
The Civil Code does not consider a lease a personal relationship, but parties can agree to terminate the contract upon death.
Right of Retention for Improvements (Article 578)
Loan (Empréstimo)
Concept
A contract where one party delivers a fungible or non-fungible item to another, with the obligation to return it. It is a real contract, requiring delivery; before that, it is only a promise to loan.
Types of Loan Contracts
- Lending (Loan for Use) – Comodato
- Loan for Consumption – Mútuo
Lending (Comodato)
Concept
A unilateral and free contract where someone delivers a non-fungible item to another for temporary use and subsequent return.
Parties
- Lender (Comodante): The owner who lends the item.
- Borrower (Comodatário): Borrows the item.
Features
- Unilateral: Only creates obligations for the borrower.
- Free: Cannot be charged; otherwise, it would be a lease.
- Real: Requires the delivery of the non-fungible item.
- Temporary: Cannot be perpetual; it would be a donation. Can be for a fixed or indefinite term, but not perpetual.
- Non-Formal: No special form required, can be verbal.
Obligations
- To keep the item (Article 582).
- To use it according to the contract or its nature.
- Liability for damage: The borrower is liable for damage due to neglect or negligence.
- To pay rent if in default: If the borrower does not return the item on time, they must pay rent determined by the lender for the delay.
- To answer for other consequences of late payment: The borrower is responsible for damage even from unforeseen circumstances or force majeure once in default.
- In cases of risk: Save the lender’s things before their own (Article 583).
Breach of Refund by the Borrower
The borrower is responsible for the delay and must pay rent for the delay (Article 575). Abuse of the loaned item is addressed through common action, *actio commodati*. The law provides for solidarity among borrowers (Article 585). Ordinary expenses are the borrower’s responsibility, extraordinary ones are the owner’s. Proving which expenses are ordinary or extraordinary can be difficult. Triviality is considered. Example: Regular gasoline and oil are ordinary. IPVA depends on the loan duration; if long, it is ordinary.
Loan for Consumption (Mútuo)
Concept
A contract where one party transfers ownership of a fungible thing to another, who undertakes to repay something of the same kind, quality, and quantity (Article 586). Ownership is transferred to the borrower, who bears all risks from the delivery (Article 587). Lending is for use; a loan is for consumption.
Examples:
- Fungible consumable thing: A farmer lends another a bag of sugar; the borrower must return another bag of sugar.
- Non-fungible consumable thing: A seller lends another copies of a non-exhausted work from the publisher for sale. The other seller must return copies of the same book.
Parties
- Lender (Mutuante): The original owner who lends the item.
- Borrower (Mutuário): Borrows the item and becomes the new owner.
Features
- Real: Occurs with the delivery of the thing (tradition).
- Unilateral: Only the borrower has the obligation to return something of equal value.
- Timed: Must have a specified or determinable period; otherwise, it would be a donation. Article 592 prescribes the duration.
- Free: When it comes to money, interest is usually charged. For other items, the contract is usually free.
- Non-Formal: No specific form is required.
Time in the Silence of the Contract (Article 592)
- Until the next harvest for agricultural products.
- Thirty days, at least, for money.
- As declared by the lender for other fungible things.
The lender must be the owner, as ownership is transferred. In a loan of money, nominalism applies; the nominal value of the currency is valid. A loan made to a minor without prior authorization from their legal representative may not be repaid (Article 588).
Exceptions (Article 588)
- If the person whose authorization was required later ratifies the loan.
- If the minor was forced to take the loan for their usual food while the authorized person was absent.
- If the minor has property earned from their work.
- If the loan benefited the minor.
- If the minor obtained the loan maliciously.