Bank cannot impose insurance on car financing

The imposition of taking out financial protection insurance and other unnecessary charges for financing is prohibited, notably when concluded in the main contract itself, as it constitutes the practice of tying and must be eliminated.





Disclosure

Reproduction Bank cannot impose insurance on car financing, TJ-SP decides

This was understood by the 11th Chamber of Private Law of the Court of Justice of São Paulo when recognizing the abusiveness of charging insurance and premium capitalization bonds in a car financing contract. The financial institution must return the amounts unduly paid to the customer.



The rapporteur, judge Walter Portugal Mobile Number List Fonseca, recalled that the illegality of the insurance tariff had already been recognized by the STJ, when judging REsp 1,639,320, under the rite of repetitive appeals. The understanding is that, in banking contracts in general, the consumer cannot be compelled to take out insurance.



"This is because the consumer is not given the option of taking out insurance from another institution, resulting in the practice of tying, prohibited by consumer legislation", stated Fonseca.



In the case at hand, according to the judge, the insurance is included in the financing contract itself, "remaining unequivocal that the granting of financing is conditional on adherence to the financial protection insurance, characterizing the tying sale".



The same reasoning was applied to the collection of the premium capitalization bond. "This is not a charge necessary for financing the vehicle, nor even an ancillary contract to that, but a business absolutely distinct from the object of the legal business," he said.



Furthermore, Fonseca stated, the title was also not contracted separately, but together with the insurance, in the same field of the financing contract, "making it impossible to choose the person financed, once again characterizing a tying sale, which must be prohibited" .







Abusive interest

The judging panel also considered the interest rate for periods of default, set at 14.20% per month, abusive. The rapporteur said that, as understood by the STJ, the remuneration charges for the period of default constitute a true continuation commission and cannot exceed the remuneration interest rate.



"In the case's hypothesis, the default interest rate corresponds to approximately eight times the monthly interest rate in the normal period, revealing undeniable abusiveness, notably because the appealed bank does not justify in its defense the reason for such an increase", explained Fonseca . The decision was unanimous and maintained the first instance sentence.