Micro and small enterprises are the backbone of the economy and frequently turn to bank credit to maintain their operations. What should serve as support, however, often becomes an obstacle: rigid adhesion contracts filled with clauses that are difficult to understand and charges that compromise the financial health of the business. In this context, it becomes essential to recognize the application of the Consumer Protection Code (CDC) in business banking relationships as a tool for contractual balance and protection against abusive practices.
Although business law is based on the idea of autonomy of will and equality between parties, in practice the reality is different: small businesses, when dealing with large financial institutions, have no real room for negotiation. The bank sets the rules, and the entrepreneur must either accept them or forgo credit. This is what is known as “adhesion,” which highlights the vulnerability of these companies, especially those that rely on credit to keep their doors open.
The Superior Court of Justice has already established the understanding that financial institutions are indeed subject to the Consumer Protection Code.
Moreover, although the general rule is that only those who acquire a product or service as the final recipient are considered consumers, the Court has accepted a more flexible interpretation. In practice, this means that when a company demonstrates a position of vulnerability—whether technical, legal, or economic—it may benefit from the protections provided by the CDC.
The aim is not to trivialize the application of the CDC, but to recognize that vulnerability does not disappear simply because the contracting party is a company. The debate gains traction particularly around the capitalization of interest. The STJ considers it legal, provided it is expressly agreed upon.
However, in bank adhesion contracts, such agreements often appear in hidden clauses, written in technical language and difficult to access. Without room for negotiation, the entrepreneur ends up taking on charges that they do not fully understand. This is precisely where the CDC plays a crucial role: demanding clarity, transparency, and preventing abuses that could render business activities unviable.
The issue becomes even more delicate when considering the reality of micro and small enterprises. Although they are formally legal entities, their contractual position is much closer to that of an individual consumer than to that of a large corporation: they lack bargaining power and the technical or legal means to debate banking clauses, and they end up bearing disproportionate charges.
Recognizing the application of the CDC to these companies means not only legally protecting them but also fostering the economy by allowing them access to credit under more balanced conditions. The criticism that such application constitutes excessive market intervention does not hold up to reality. Without minimal protection, credit ceases to be a solution and becomes a trap, undermining the social function of the company and, consequently, the economic order.
Therefore, the application of the Consumer Protection Code in business banking relationships—especially in the analysis of interest capitalization and adhesion contracts entered into with micro and small enterprises—is not only possible but essential. It is about ensuring balance, transparency, and the preservation of business activity, thus giving effect to the principle of the social function of contracts.
Beatriz Taglieta Nascimento holds a law degree from PUC-Campinas and a postgraduate degree in Medical Law and Bioethics from the Brazilian School of Law. She is a mid-level attorney in the civil litigation area at Granito Boneli Advogados.