Commentary on Judgment No. 40272 of 2024 on Usury: Clarifications on the Determination of the Rate
The recent judgment No. 40272 of September 12, 2024, issued by the Court of Cassation, offers an important reflection on the delicate issue of usury and the correct determination of the interest rate. The Court established that the fiscal and tax effects related to a loan should not be included in the calculation of the usurious interest rate referred to in Article 644 of the Penal Code. This decision responds to a need for clarity in the matter and fits into a legal context characterized by increasing attention to consumer rights and protection against usurious practices.
The Principle of Non-Inclusion of Fiscal Effects in the Calculation of Usurious Interest
According to the Court, fiscal and tax effects, such as deductions and tax withholdings, should not be considered in the calculation of the usurious interest rate, as they are not directly connected to the granting of credit. This aspect is crucial for understanding the dynamics that govern financing agreements and for ensuring adequate protection for debtors. The Court clarified that:
Usurious interest rate - Determination - Relevant elements - Case. In terms of usury, the fiscal and tax effects of the financing (such as deductions, tax withholdings, etc.), even if reported in the income tax return, are excluded from the calculation of usurious interest under Article 644, paragraph four, of the Penal Code, as they are not linked to the granting of credit. (In this case, the Court held that neither the tax deductions indicated by the debtor, as savings in expenses, in the income tax return, nor the tax outlays of the creditor, constituting an expense burden, should be taken into account for this purpose, as they are not connected to the genetic moment of the granting, but rather represent consequences of the subjective attribution of the stipulation).
Practical and Jurisprudential Implications of the Judgment
This judgment has important practical implications, as it establishes a clear legal principle that financial institutions must follow. In particular, the Court reiterated that the calculation of the usurious interest rate must be made based on the contractual conditions at the time of granting credit, without considering external factors that do not directly affect the transaction. The consequences of this decision are reflected in various areas:
- Greater protection for debtors, who can contest usurious practices without fear of having to consider fiscal factors.
- Clarity and uniformity in jurisprudence, helping to avoid arbitrary interpretations by financial institutions.
- A reminder of the importance of correct information and transparency from creditors towards debtors.
Conclusions
Judgment No. 40272 of 2024 represents a significant step in the fight against usury, clearly establishing which elements must be considered in the calculation of the usurious interest rate. The Court of Cassation, through this decision, not only protects consumer rights but also establishes an important legal precedent that may influence future decisions in this area. It is essential that all actors in the financial sector take note of these indications to ensure a fairer and more transparent market.
