O Distrato é uma situação bem delicada e que exige um bom conhecimento, tanto para o distratante (a parte que solicita o distrato), quanto para o distratado (a parte que recebe a solicitação de distrato). O distrato é um novo contrato criado para extinguir as obrigações estabelecidas num contrato anterior, que pode ter sido concluído parcialmente ou ainda estar pendente de execução. O objetivo deste nosso artigo, caro leitor, é destrinchar todos os detalhes e tipos de distrato, provendo todos os detalhes sobre os direitos e obrigações neste processo, fornecendo uma base para o entendimento deste conceito. Ao final do artigo também ofertaremos alguns modelos prontos para a comunicação de um distrato contratual em sites especializados. Não fique na dúvida, nós lhe Informaremos!
Ah, os distratos … E já aproveito este início de artigo para uma rápida correção: A palavra correta, neste caso, é distrato mesmo. Isto responde duas perguntas bem comuns: “É distrato ou destrato“? Qual a diferença entre “distrato” e “destrato“? Sim, a resposta é distrato. Vamos à definição conforme o dicionário Aurélio:
- Distrato – É um acordo feito pelas partes contratantes pelo qual se cancela o vínculo originado do contrato: Exemplo: “Com o aumento dos preços, o distrato foi inevitável”.
- Destrato – É a flexão do verbo destratar na 1ª pessoa do singular (eu destrato), cujo significado é insultar, maltratar com palavras: Exemplo: “Eu destrato somente aqueles que me faltam com o respeito”.
E para não perder tempo, vamos direto a definição de distrato no que tange à relações comerciais:
O que é Distrato?
Significado de distrato: O distrato é a rescisão ou anulação de um contrato anteriormente pactuado entre as partes.
Ele pode ser consensual (quando as partes contratantes chegam a um consenso sobre a forma da rescisão) ou unilateral (quando apenas uma das partes contratantes o rescinde).
Conforme o Código Civil de 2002, temos a seguinte definição:
“O distrato é um contrato que tem por objeto extinguir as obrigações estabelecidas em um contrato anterior, que ainda não foi executado na sua totalidade.
Depende do consentimento entre as partes, mas pode se operar também por resilição unilateral (por apenas uma das partes), mediante denúncia notificada à outra parte.
Determina a lei que o distrato seja feito pela mesma forma dos contratos.
Art. 472. O distrato faz-se pela mesma forma exigida para o contrato.
Art. 473. A resilição unilateral, nos casos em que a lei expressa ou implicitamente o permita, opera mediante denúncia notificada à outra parte.”
Em outras palavras, sempre que um contrato for firmado e uma das partes desistir do cumprimento de parte ou da totalidade das cláusulas definidas e aceitas no momento da assinatura, isto significa a necessidade da criação de um distrato para que sejam rescindidas as obrigações do contrato original.
Cito um exemplo bem simples: Digamos que uma pessoa que realize importações de produtos dos Estados Unidos formalize um contrato de venda (fornecimento), durante os próximos 12 meses, produtos importados ao custo de R$ 3,20 (conforme a cotação do dólar no dia de firmar o contrato). Sem se preocupar com o risco de variação do dólar, o contrato é fechado neste valor fixo para os próximos 12 meses. No entanto, eventos inesperados no Brasil, como a greve dos caminhoneiros, eleva o dólar para R$ 3,80, transformando o lucro anterior de fornecimento em prejuízo ao importador. Este é um caso típico onde o importador (distratante, neste caso) proporá um distrato do atual contrato de fornecimento, devido às perdas ocorridas pela variação do dólar. Caberá ao comprador (distratado) aceitar de bom grado ou não o distrato contratual. Este é um típico exemplo de distrato.
Mais um exemplo, agora na vertente imobiliária: Um novo empreendimento, um prédio com 12 andares será construído no bairro de João, que, diante da excelente oportunidade, decide realizar a compra de uma unidade ainda na planta, ou seja, com a construção sendo iniciada. A crise atinge em cheio o setor da empresa de João, que se vê em maus lençóis: Ele foi despedido. Diante da redução de renda familiar, a compra deste imóvel na planta começa a pesar o orçamento da família de João, que decide procurar o escritório da construtora onde adquiriu o imóvel para o cancelamento. Esta ação de cancelar um negócio já realizado (contratado) se trata de um distrato contratual, que abordaremos em detalhes nesta postagem.
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O primeiro conceito de distrato ficou claro, não é? Então vamos para a próxima explicação.
Tipos de Distrato e como Acontece
Bem, nesta parte vamos responder a principal pergunta: “Qual a diferença entre resolução, resilição e rescisão?”. Vamos dividir este tópico e explicar cada uma destas vertentes no âmbito de contratos.
- Resolução: Caso uma das partes de um contrato não cumpra de forma total ou parcial as obrigações concordadas, este será considerado um caso de descumprimento , permitindo desta forma a dissolução (cancelamento) do contrato.
- Resilição: Aqui enquadram-se os casos onde uma das partes, ou mesmo ambas as partes decidem pelo cancelamento de um contrato. Temos dois tipos de distrato de resilição:
- Distrato de resilição consensual: Ambas as partes decidem rescindir o contrato.
- Distrato unilateral: Neste caso, apenas uma das partes decide rescindir o contrato. Para início da validade, é mandatório enviar uma notificação ao distratado. Aqui vale ressaltar que não basta apenas enviar uma notificação de distrato contratual de forma unilateral e considerar cancelado o contrato. Assim sendo, deve ser avaliado todo o contexto. Um exemplo: Imagine que para fornecer um certo produto uma empresa tenha adquirido maquinários e contratado funcionários para a produção e atendimento do contrato. Caso a empresa contratante decida pelo distrato, ou seja, por rescindir o contrato, não bastaria apenas informar do cancelamento, pois o distratado (neste caso a empresa que adquiriu maquinários e contratou funcionários) teria um grande prejuízo por ter feito este investimento baseado no contrato.
Áreas de Aplicação do Distrato
O distrato se aplica em vários setores, e baseado nestes contextos temos algumas importantes variações. Entre os mais comuns tipos de distrato, podemos considerar:
- Compra e venda de Imóvel: Quando há cancelamento do contrato entre comprador e vendedor. Acontece quando, após a compra de um imóvel na planta, muda-se de prioridade ao longo da vigência do contrato (por motivos como mudança de emprego, nascimento de filhos ou endividamento), levando o comprador a cancelar o contrato de compra.
- Locação de Imóvel: Quando há cancelamento do contrato de locação (aluguel) entre comprador e vendedor. O distrato de aluguel cancela o compromisso prévio das partes geradas a partir de um contrato, o qual aplica condições de uso de um imóvel ao longo do tempo. Tanto o inquilino como o proprietário podem pedir o cancelamento do contrato.
- Prestação de Serviço: Quando há cancelamento em um serviço previamente combinado entre contratante e prestador de serviço. Pode ocorrer pelo cancelamento dos serviços por uma das partes ou por descumprimento do que foi acordado inicialmente (A baixa qualidade do serviço em execução ou entregue, bem como a inadimplência são claros exemplos), além de desistências da compra do serviço.
- Sociedade: Quando há cancelamento no contrato realizado pelos sócios de uma empresa. Acontece, por exemplo, no momento da saída de um ou mais sócios da empresa ou no fechamento das atividades da empresa. Um dos sócios solicita a saída da empresa, ou ambos acordam com o encerramento das atividades.
- Parceria: Quando há cancelamento entre uma parceria profissional anteriormente firmada. Por exemplo, dois engenheiros podem realizar uma parceria para o gerenciamento de obras, porém, por qualquer mudança de planos um dos engenheiros decide gerenciar as obras sozinho.
Independente dos casos acima, o processo em si é muito similar: Uma ou ambas as partes optam pelo cancelamento do contrato firmado anteriormente, ou quando uma das partes não cumpre com o que foi previamente acordado em contrato. O resultado disto é a assinatura de um termo de distrato, que possibilitará validar a decisão de cancelamento do contrato de forma justa para ambas as partes.
Os Riscos de Distrato
O melhor dos mundos no caso onde seja necessária a aplicação de um distrato, é o resilição consensual, como vimos acima, pois neste caso ambos os envolvidos optam mutuamente pelo encerramento, sem maiores desgastes. No entanto, na maioria dos casos uma das partes pode não concordar com o encerramento de um contrato, tornando a situação um grande risco e um grande problema ao distratante.
Se você assinar um contrato, tenha plena ciência do acordo que está sendo realizado, garantindo que você possa cumprir com todas as cláusulas e obrigações inseridas no mesmo. Além disso e da mesma forma, é importante saber exatamente as cláusulas e obrigações da outra parte para o correto acompanhamento. Se não houver cumprimento destas obrigações, haverá a possibilidade de ocorrer um distrato.
A inadimplência pode ser utilizada como um exemplo claro: Havendo inadimplência de uma das partes, a parte lesada poderá tanto optar pelo distrato, ou mesmo exibir o cumprimento do contrato, cabendo inclusive indenização por perdas e danos, pelos motivos explicitados. Um contrato é algo muito sério e deve ser tratado com muita atenção.
Em qualquer caso onde uma das partes adquira custos excessivos e não previstos no escopo inicial da contratação, sendo estes casos prejudiciais, a parte afetada poderá distratar o contrato.
Modelo de Distrato – O que Deve Conter um Distrato?
Cada modelo poderá variar conforme a necessidade de uso e o tema, porém alguns itens são mandatórios para qualquer tipo de contrato. Antes de entrarmos nesta explicação, vale incluir os demais nomes utilizados para a busca de modelos deste tipo:
- Modelo de distrato de contrato
- Termo de distrato
- Contrato de distrato
- Carta de distrato
- Carta de cancelamento
Basicamente para a elaboração de um distrato, temos como principais tópicos a inclusão dos seguintes itens:
- Título
- Qualificação das partes
- Objeto contratual
- Obrigações das partes
- Penalidades em caso de descumprimento
- Eleição de foro
- Local, data e assinaturas
Entendemos que, seguindo a estrutura acima exibida, o documento de distrato será criado em conformidade .
1. Título
O título indica a finalidade e o objetivo do documento. Exemplo:
“Distrato de Locação de Imóvel”
2. Qualificação das partes
A qualificação das partes traz toda a informação útil para o processo (distratante e distratado). Podemos verificar abaixo um exemplo:
“César Filipe da Silva, brasileiro, solteiro, analista de sistemas, CPF ___.___.___-__, RG ____.___, residente e domiciliado na rua João da Silva Matos – São Paulo / SP CEP _____-___.”
3. Objeto contratual
Deve explicar com clareza qual o tipo de rescisão será realizada, informando o acordo prévio (o qual será anulado a partir deste documento) e outros detalhes específicos da situação.
Nesta parte detalhe os motivos que levaram ao cancelamento do contrato, de forma clara e sucinta, não permitindo duplas interpretações. Com a correta explicação do tipo de rescisão proposta, com o que foi acordado e demais detalhes que caibam nesta situação especial.
4. Obrigações das partes
Cada uma das obrigações do distrato deverão ser incluídas em forma de cláusulas no documento. Exemplo:
“Cláusula 5ª – O pagamento integral das parcelas em aberto deve acontecer até a data final de entrega do imóvel.”
5. Penalidades em caso de descumprimento
É muito importante definir de forma clara e concisa quais serão as penalidades em caso de descumprimento das cláusulas estipuladas no distrato, provendo as garantias necessárias para ambas as partes. Veja um exemplo:
“Em caso de cancelamento da compra, todos os custos envolvidos com a contratação de pessoa e/ou maquinários serão exclusivamente pagas pelo comprador.”
6. Eleição de foro
Basicamente determina o local de ajuizamento de possíveis ações na rescisão do contrato. Em geral, é incluído como a cidade origem de uma ou ambas as partes, mas pode ser inserida qualquer cidade, independente do endereço dos envolvidos.
7. Local, data e assinaturas
Sugere-se ao final do modelo, incluir a data (dia, mês e ano) da assinatura, bem como o local de execução (cidade e estado), e espaços para as assinaturas do distratante, distratado e pelo menos duas testemunhas.
Modelo de Distrato – Modelos Prontos para Download
Abaixo você pode realizar o download de modelos prontos para cada tipo de situação, diretamente dos sites abaixo apresentados (Modelo Simples, Normas Legais, Modelos Prontos).
Estes documentos online podem servir de base para a criação de seu respectivo documento.
- Modelo de Distrato de Contrato de Locação: Página Modelo Simples (Locação).
- Modelo de Distrato de Contrato de Locação: Página Modelos Prontos (Locação).
- Modelo de Distrato de Contrato de Comodato: Página Modelo Simples (Comodato)
- Modelo de Distrato Trabalhista: Página Modelo Simples (Trabalhista).
- Modelo de Distrato de Parceria: Página Normas Legais (Parceria).
- Modelo de Distrato de Compra e Venda de Imóveis: Página Normas Legais (Imóveis).
- Modelo de Distrato de Prestação de Serviços: Página Normais Legais (Prestação de Serviços).
- Modelo de Distrato de Sociedade: Página Normas Legais (Sociedade).
Distrato Imobiliário:
Este é um dos tipos mais comuns de distrato e teremos uma postagem específica para destrinchar todos os detalhes.
No entanto, para ter uma primeira visão do que se trata este documento, abaixo temos uma imagem inicial:
Baixe nos links do tópico “Modelo de Distrato – Modelos Prontos para Download” um exemplo para este tipo de situação.
Distrato de Locação de Imóvel / Aluguel:
Quando há a necessidade de cancelamento de um contrato anteriormente firmado para a locação de um imóvel (casa, apartamento, barracão), é importante seguir as dicas abaixo para a notificação ao proprietário e/ou imobiliária acerca da necessidade do cancelamento.
Conforme modelo obtido no site Modelos Simples, veja abaixo um modelo de exemplo para esta situação.
Baixe nos links do tópico “Modelo de Distrato – Modelos Prontos para Download”
Resumo Final:
Esperamos que com este artigo todas as suas dúvidas tenham sido esclarecidas. Se tiver mais alguma, deixe nos comentários. Teremos uma postagem específica sobre distrato imobiliário. Aguarde as próximas postagens!
Estudo Adicional sobre Distrato – Vídeo Aulas
Para quem deseja se aprofundar no tema, abaixo alguns vídeos que separamos no Youtube, rápidos e com boa didática:
Gostou da nossa postagem? Não deixe de salvar nosso site nos favoritos e compartilhar nas redes sociais e com os amigos!
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Sosyal medya başarınızı kat ve kat artırmak, postlarınız ve hesaplarınızla Instagram başlıca gönderilerde yer almak için takipçi sayınızın çok yüksek olması, etkileşiminizin fazla olması gerekir. Siz de sosyal medyada başarılı olmak, satışlarınızı artırmak istiyorsanız Instagramda takipçi satın almak için Crovu’yu tercih edin.
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Muito bom o post. É bom estarmos informados da parte legal quando tratamos com imóveis.
Abraço
Muito obrigado Dil! Espero que atenda a quem busca detalhes sobre este tema! Abraço
Parabéns pelo post. Muito completo.
Abraços.
Valeu Cowboy! Agora sim posso dizer que entendi o que é um distrato! Abraço. I
Pra mim parece que distrato é mais uma maneira pomposa de chamar “quebra de contrato”… fiquei na dúvida sobre qual seria a diferença entre distrato e “quebra de contrato” caso uma das partes não aceite fazer o distrato.
Sr. IF365
Blog do Sr.IF365 | Acompanhe meus últimos 365 dias antes da IF e Aposentadoria Antecipada
http://www.srif365.com
Olá sr. IF!
A quebra de contrato se enquadra no caso de ‘resolução’, onde uma das partes não cumpriu com as cláusulas previstas em contrato. Basicamente um distrato seria realmente um ‘novo contrato para cancelar o anterior’, seria esta a minha exemplificação mais simples para comparar. O distrato é muito importante e pode auxiliar muito quando não há consenso entre as partes, por isto deve ser bem feito. Obrigado pelo comentário e um abraço.
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