Aa (ir)retratabilidade da promessa de compra e venda na incorporação imobiliária: uma perspectiva da Lei nº 13.786/2018

Abstract

This research deals with the irretractability of the commitment (or promise) of the purchase and sale of future autonomous units, signed under the aegis of real estate development. It analyzes the impacts and modifications inserted in the extinction of this type of contract, by Law 13,786 / 2018. It aims, through an analysis of the legal nature of the related institutes, to verify the need to issue Law 13,786 / 2018 and its compliance with contractual principles and vulnerability in civil and consumer relations. We find that the question of irretractability affects the consequences of the termination of the purchase and sale commitments entered into in the real estate development, but does not necessarily prevent unilateral resolution. The differences in species of resolution are indispensable for the correct interpretation and application of Law no. 13.786 / 2018, which presentes technical defects. The contractual principles and the dialogue of the sources are essential for the interpretation of Law nº 13.786 / 2018. The penalties established by Law No. 13,786 / 2018 may be waived in certain cases of termination of specific contracts and specific cases. We conclude that the issuance of a specific law for the termination of contracts in the real estate development had the scope to confer equality of solution to the plethora of lawsuits filed on this basis. On the other hand, we envisage that, as drafted, the law will not reduce the number of actions and will not generate the desired legal security. Although it has not exhausted the subject, we believe that this study has presented guidelines for the analysis of the penalties effectively applicable to the extinctions of the contracts studied