CONSIGNABLE MARGIN AGREEMENTS: ANALYSIS ABOUT THE UNDERSTANDING OF THE COURT OF JUSTICE OF BAHIA

Abstract

The present work deals with the topic of the consignable margin reserve contract, and its reception in the jurisprudence of Bahia. Firstly, it is analyzed the applicability of the Consumer Protection Code to financial institutions, and which are the main consequences of such incidence notably in view of the protective nature of consumer legislation as an expression of the diagonal effectiveness of fundamental rights, and regarding the inversion of the burden of proof. There are presented the concepts of consignable loan and of consignable margin reserve, differentiating them, with the indication of the law and regulation applicable to the latter modality. With that, it is aimed to situate the topic and make possible the comprehension about the possible irregularities regarding the contractual species, with an emphasis on the main flaws that are commonly alleged by contracting parties in lawsuits that discuss the consignable margin reserve. After that, judgments are analyzed on the contract in question, within the scope of the Bahia Appeals Panels and the Bahia Court of Justice, separately, with the goal of presenting the current prevailing understandings in such bodies, about its veracity and validity, or abusiveness; and, in the latter case, which are the consequences determined by the judging body arising from the recognition of the nullity of the agreement, as well as what are the grounds used by the judges as a reason to decide.