STJ recognizes validity of forum election clause in adhesion contract

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The forum selection clause in a property purchase and sale agreement is only invalid if one of the parties is proven to be incompetent. The decision is from the 3rd Panel of the Superior Court of Justice. The case is an action for termination of a property purchase and sale commitment contract, with a request for compensation for material and moral damages, due to the clandestinity of the subdivision and other irregularities. The court of origin found the forum selection clause in the adhesion contract to be null and void and highlighted the clear consumerist nature of the relationship between the parties.

At the STJ, the case's rapporteur, minister Nancy Germany Phone Number Andrighi, highlighted that the court's jurisprudence understands that the clause that stipulates the election of forum in an adhesion contract can only be considered invalid when the party's hyposufficiency or difficulty in accessing power is demonstrated. Judiciary. The situation of hyposufficiency must be demonstrated with concrete data that reveal procedural prejudice for one of the parties, but, according to the minister, the second instance ruling only considered the consumer's condition to determine her hyposufficiency and rule out the application of the forum selection clause.



“The fact that it is an adhesion contract is not sufficient, in itself, to modify the contractually elected forum, and it is essential, therefore, that the party's difficulty in accessing the Judiciary or hyposufficiency be established, which did not occur ”, concluded the rapporteur. Within this niche the companies Airbnb and Uber stand out which have been shaking up the competitive market. It is known that the Federal Constitution guarantees freedom of competition and free enterprise in its article item IV as well as in article caput and item IV. Likewise as it is a service exclusively offered by the application the Internet Civil Framework Law Law is applicable which guarantees the freedom of business models promoted on the internet in its article VIII.