Withdrawal from consortiums

The rigidity of a dogmatic position through summary interpretation is not healthy and often goes against the reality of the contractual legal transaction itself.

With the advent of the current law governing consortia, the aim was to provide a secure mechanism that would offer those who withdraw a better chance of waiting for the group to finish.

When dealing with movable and durable goods, the lifespan is typically around five years, so we don't foresee much harm to the consumer. However, the situation is different in the case of immovable property.

The first question concerns the application of consumer law and the need for effective transparency to prevent misleading advertising from succeeding.

Secondly, many consumers are misled when they think they are dealing with a letter of credit to be obtained within ninety days, but then realize it is a consortium like any other and they are subject to the long wait for the award.

If a flaw or defect exists in the legal act, the person withdrawing is not necessarily a party to the act, but rather someone interested in its annulment, since the opacity fueled their desire, given an unequivocal mental reservation.

In this modality, the agreement can be rescinded due to fault in the offer, and the immediate return of the funds to the consortium member is permitted without any deductions.

Nevertheless, the court may determine the reversal of the burden of proof and require the administrator to prove the existence of the adhesion agreement and the potential for disclosure, in order to safeguard the resolution of the business.

And if no solid evidence is found to support the termination of the contract due to fault, based on simple actuarial calculations, we foresee no harm whatsoever if the consumer is immediately compensated with real estate.

The argument that other co-owners suffered harm is flawed and lacks merit, considering the transfer of the share, the extension of the term, and even the prospect of the administrator acquiring the share belonging to the withdrawing member.

Normally and definitively, a real estate consortium has a long duration, more than a decade, and it is neither fair nor consistent to delay the repayment when the beneficiary is an elderly person who will face an expectation that could lead to failure.

Moreover, those who give up face financial difficulties and cannot wait for their dream of owning a home to turn into a nightmare, which is why, in general, they do not spend more than 20% of the amounts related to the consortium plan, thus demonstrating, once again, that the loss is apparent, not real.

Statistical data and actuarial mathematics prove that the exit strategy must be balanced; thus, if a given group has one hundred members and only 5% drop out, the impact will be minimal. Conversely, if there is a mass dropout, it would conflict with the survival of the members themselves.

Therefore, it would not be entirely illogical for the consortium regulations to stipulate a percentage appropriate to the formation of the group so that the funds could be immediately released to the withdrawing member, with the deduction of the administration fee, limited to 10%, without including future aspects and, much less, providing for a compensatory clause.

Given the rationale behind real estate consortia and the significant difficulties faced by salaried workers in making payments due to inflation and the erosion of purchasing power, it would be nonsensical to trap a withdrawing member for 15 years and make them wait for the group's fate, especially since we know the administrator could face a crisis, be liquidated, or have the procedure converted into bankruptcy.

The adoption of the durable goods insurance rule, regarding restitution to the property precept, cannot prevail, under penalty of undermining its principles and subjecting the consumer to the dissipation of their dream, in addition to the uncertainty of the economy and all the negative aspects of currency devaluation.

In summary, it is necessary to analyze the underlying legal transaction to determine fault or, alternatively, to seek immediate restitution without actual harm to the group, as this is a more appropriate and consistent approach given the long history of this type of business, which extends its effects to all social classes in Brazil.