The New Brazilian Civil Code enacted on January 11, 2003 includes for the first time provisions on adhesion contracts (Arts 423 and 424), and envisages the “social use” of the contract, rather than the principles of property and individuality of the Former Brazilian Civil Code of 1916. The inclusion of the concept of “social use” of the contract intends to keep adhesion contracts balanced and protect the public interest in them when challenged by private interests.
Even though the provisions on adhesion contracts are new to the Civil Code, the Brazilian Consumer Protection Code “CDC” (Law No.8.078/90) already regulates adhesion contracts (Arts 47 and 54), based on the “social use” of the contract.
The CDC defines adhesion contracts as those with: “… clauses that have been approved by the competent authorities or established unilaterally by the supplier of the products or services, without being properly discussed or modified by the consumer.”
The New Brazilian Civil Code neither excludes nor derogates any of the principles of the CDC, which only relates to consumer relations. Thus, even if a principle of the New Civil Code conflicted with the CDC, the CDC would always prevail in so far as consumer nexus is concerned.
Article 423 of the New Brazilian Civil Code sets out the rule “contra proferentem” which determines that: “… whenever there are ambiguous or contradictory clauses in an adhesion contract, the interpretation more favourable to the adherent must be adopted“.
Accordingly, the New Brazilian Civil Code also regulates adhesion contracts, which were previously regulated only by the CDC. Hence, even though there is not a consumer nexus, an adherent will be protected owing to the characteristics of this type of contract. The inclusion of adhesion contracts in the New Brazilian Civil Code has the objective of protecting the weaker party in contracts that are not protected by the CDC. It should be stressed that any contract which falls within the scope of Arts 423 and 424 of the New Brazilian Civil Code will be subject to special protection.
Thus, an adhesion contract which involves, for example, a guarantor (such as a loan agreement), must not establish that the guarantor waives the benefit of order set out in Art 827 of the New Brazilian Civil Code. The benefit of order is the right given to the guarantor to only have its assets involved in enforcement proceeding after the same is enforced against the debtor´s assets. This understanding is based on Art 424 of the New Brazilian Civil Code.
In accordance with Art 424 of the New Brazilian Civil Code, contractual clauses by which the adherent waives rights are considered abusive and considered null.