Historically, state interventionism has proven to be a mechanism to stimulate the development of Brazilian agribusiness, a sector responsible for 27.4% of the Gross Domestic Product (GDP) in 2021.
Rural credit – one of the pillars of Brazilian agricultural policy – granted by its government programs to subsidize agribusiness or provided by private financial institutions to finance the sector, is unquestionably one of the most effective ways to develop and cost national agribusiness.
Law 4,829/65 institutionalized the rural credit system, establishing its legal purposes and, especially, setting its operational dynamics. The competence of the National Monetary Council (CMN), within its legal attributions, was established[1] to regulate the operation of rural credit, through regulations. These regulations are published in resolutions of the Central Bank (Bacen) and consolidated in the Rural Credit Manual (MCR).[2]
The terms and conditions for granting the resources linked to the agricultural policy of rural credit are outlined in MCR 6, according to which these resources will be:
- controlled (or non-free resources), when subsidized by the federal government and, therefore, with their contracting conditions, such as values, interest rates, guarantees, and maturities, stipulated by the public power through programs aimed at the development of agribusiness; and
- not controlled (or free resources), those freely negotiated between financial institutions and borrowers – rural producers (individuals or legal entities), cooperatives and/or associations.
Although the terms and conditions for access to controlled resources are consolidated by government programs in the RCM and the relevant legislation, there are omissions, obscurities and, sometimes, contradictions concerning transactions involving free resources, proposed to boost and facilitate access to credit for the agricultural sector in general.
The forming understanding arises from the fact that Decree-Law 167/67, which provided for the modalities of rural credit notes, provides that the CMN will limit remuneration in operations involving uncontrolled resources and, therefore, will be disposed of in the MCR.
In 2013, after approval by the CMN, Bacen Resolution 4,234/13 was published, which, in addition to making general adjustments in the regulation of rural credit resources, amended MCR 6-3, i. e. redesigned the subsection related to operations carried out with free resources.
Despite the adjustments made by BACEN Resolution 4,234/13, discussions persist about the omission of the CMN on the alleged obligation, under the terms of article 5 of Decree-Law 167/67, to fix a maximum percentage, as remunerative interest, on transactions originating from uncontrolled resources.
Although the aforementioned legal provision ensures that "[t]he sums provided by the financier shall bear interest at the rates fixed by the National Monetary Council ... ", it does not provide for the obligation of the CMN to stipulate a maximum level for this purpose. This inclusive was the interpretation of the majority jurisprudence on the subject, headed by the Superior Court of Justice (STJ) when assessing the matter.
Recently, without observing the elementary purpose of rural credit carried out with the use of free resources – that is, the capillarization and debureaucratization of resources for the financing of agribusiness –, the STJ, in judging REsp 1.940.292/PR, [3] ratified its position concerning the omission of the CMN in the regulation of the interest rate on free resources and, therefore, to the application of the limitation imposed by Decree 22.626/33[4] (Usury Law).
According to the vote of the rapporteur, Minister Nancy Andrighi, "[...] the CMN did not set any limit for interest rates, while article 5 of Decree-Law No. 167/1967 expressly provides that interest will fall due at the rates fixed by the CMN". He also stated that "[...] the CMN authorized the parties, in rural credit notes with uncontrolled resources, to agree on interest rates freely, but remained silent on the setting of a limit, as determined by Article 5 of Decree-Law No. 167/1967 [...]".
It is worth clarifying that, in contradiction to the provisions of the vote abovementioned, there is no determination in Article 5 of Decree-Law 167/67 on the obligation for the CMN to set a limit for the interest rate in transactions of this nature.
The normative provision in question was not silent; therefore, the extensive interpretation of the norm does not fit.
Even if this were the case, given the principle of eventuality, the extensive interpretation of the rule to the defendant's prejudice is prohibited. This would be the case of REsp 940.292/PR, an appeal filed by Banco Bradesco S.A. against the limitation of remunerative interest – according to the premises of the Usury Law – in the operation of the rural credit note.
By reading the provision, it is clear that the legislator's purpose was, in addition to providing for the enforceability of credit, to assign to the CMN the responsibility of fixing the interest rates levied on the available resources – controlled or not.
There is no specific legislative determination for the CMN to limit the maximum percentage applied as remuneration for credit freely traded between private financial institutions and the borrower.
Therefore, there would be no need to speak, in principle, of omission of the CMN, since the interest rate on uncontrolled resources was fixed, i.e., freely agreed between those involved in the operation. Furthermore, the principle of autonomy of the parties' wills was prioritized in operations not subject to government subsidies' economic and social rules.
In this sense, and diverging from the rapporteur of REsp 1.940.292/PR, Minister Ricardo Villas Bôas Cueva signed his understanding in vote-view. According to the minister, the adjustments imposed by BACEN Resolution 4.234/13 "[...] leave no doubt that, in rural credit operations with free or uncontrolled resources, the contractual conditions are those disciplined in Chapter 6, Section 3, of the Rural Credit Manual, which expressly leaves the definition of interest rates to the free will of the parties."
As highlighted by Minister Ricardo Villas Bôas Cueva, "[t]he simple fact of not being able to count on the subsidy arising from the government system of equalization of interest rates is already an aspect that justifies conferring differentiated treatment for rural credit operations with free or uncontrolled resources."
Another point that deserves attention, but will not be the subject of an approach in this article, is the provision signed in Precedent 596, of the Federal Supreme Court (STF), according to which the provisions of the Usury Law "[...] do not apply to interest rates and other charges charged on operations carried out by public or private institutions, which are part of the National Financial System".
Therefore, and considering that free resources are made available by private financial institutions – all members of the National Financial System (SFN) – these transactions are not subject to the limitations imposed by the STJ. As signed by the Supreme Court, [5] "[t]he stipulation of remunerative interest higher than 12% per year, by itself, does not indicate abusiveness."
For procedural analysis on possible sub judice cases, and regarding the adversarial and the broad defense, it will be necessary to make individualized evaluations, with expert analysis of the transactions, not being enough mere judicial imposition of limitation under the terms of the Usury Law.
Therefore, the question of remunerative interest on operations with uncontrolled resources, although considered consolidated by the dominant jurisprudence, when interpreted systemically and submitted to its complexity and economic implications, still finds technically based divergences.
All this can lead the theme to a new discussion, especially if it is not a matter signed in the context of repetitive resources.
[1]Law 4,595, of 1964, in its article 4, provides for the powers of the CMN. Among these is the limitation, whenever necessary, of interest rates, discounts, commissions and any other form of remuneration for banking or financial operations and services (art. 4, inc. IX).
[2] MCR – Consultation Instructions 1: the Rural Credit Manual (MCR) codifies the rules approved by the National Monetary Council (CMN) and those released by the Central Bank of Brazil regarding rural credit, to which beneficiaries and financial institutions operating in the National Rural Credit System (SNCR) must subordinate, while observing the applicable regulations and legislation.
[3] STJ. Special Appeal 1.940.292/PR. Rapporteur Minister Nancy Andrighi. Third Class. Tried May 3, 2022. Published in DJ-e on May 27, 2022.
[4] The limitation to 12% per year, imposed by the Usury Law, is in fact due to the joint interpretation of article 1 of the aforementioned normative diploma with article 406 of the Civil Code, which in turn is in line with article 161, paragraph 1, of the National Tax Code.
[5] STF. RE 1344201/PR. Rapporteur Minister Alexandre de Moraes. Tried Sept. 16, 2021. Published in DJ-e on September 20, 2021.
