A common practice in the banking market is to present debt renegotiations as if they were a “novation”—that is, as if a new contract had been created. This strategy is frequently used by financial institutions and gives the consumer the false impression that, by signing the new agreement, they lose the right to legally review previous contracts, especially those containing abusive interest rates or unlawful charges.
However, this interpretation has already been addressed by the Brazilian judiciary, and Precedent 286 of the Superior Court of Justice (STJ) clearly states that the renegotiation of banking contracts or acknowledgment of debt does not prevent the review of prior contracts. This means that even if the bank labels the agreement as a “novation,” the consumer may still challenge abusive terms originating from the very first contract in the chain.
The article explains that, for a valid novation to exist, the previous obligation must be truly extinguished, a new obligation must arise, and there must be what is known as animus novandi—the clear and unequivocal intention of the parties to create a new debt.
Therefore, the STJ affirms that superficial changes do not constitute novation.
The Consumer Defense Code (CDC) reinforces this protection: it acknowledges the consumer’s vulnerability (Art. 4), guarantees the right to review abusive clauses (Art. 6, V), and renders null any clauses that limit access to the judiciary (Art. 51). Thus, clauses that attempt to prevent the review of previous contracts—such as those in which the bank artificially includes the term “novation”—are subject to legal challenge.
The judiciary is empowered to examine the economic reality of the transaction and clearly determine whether a true novation has taken place, ensuring that illegalities are not perpetuated under the appearance of a “new contract.” The ability to thoroughly examine all clauses and conditions, identifying potential abuses, is a tool available to the consumer to ensure their legal protection.
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https://www.migalhas.com.br/depeso/445591/novacao-ficta-sumula-286-stj-protege-o-consumidor-de-abusos-bancarios