Circular No. 2394 — Amends regulations governing the constitution and operation of consortium groups referenced in trucks, buses, tractors, road equipment, agricultural machinery, aircraft, vessels, automobiles, vans, utility vehicles, buggies, motorcycles, and mopeds

CIRCULAR N. 002394

Amends norms that regulate the constitution and functioning of consortium groups referenced in trucks, buses, tractors, road equipment, machines and agricultural equipment, aircraft, vessels, automobiles, vans, utility vehicles, "buggies", motorcycles and mopeds, and establishes other procedures for consortia.

The Board of Directors of the Central Bank of Brazil, in a session held on 12.22.93, based on Law No. 8,177, of 03.01.91,

DECIDED:

Art. 1st Alter, in the Regulation annexed to Circular No. 2,196, of 06.30.92, with the modifications introduced by Circular No. 2,255, of 12.09.92, Articles 13, 15, 20, 24, 26, 28, 29, 30, 31, 34, 35, 38, 42, 43, 48, 49 and 50, as well as item IV of Art. 51, Paragraph 1st of Art. 64, the "caput" of Art. 65, item III of Art. 66 and item XIV of Art. 68, which shall enter into force with the following wording:

"Art. 13. The contemplation is conditioned upon the existence of sufficient resources in the common fund, allowing the use of the reserve fund resources, observed the provisions of item I of Art. 31 of this Regulation, for the distribution, by lottery, of, at least, one credit for the purchase of a good.

"Paragraph 1st After the distribution by lottery, of, at least, one credit for the purchase of a good or if it has not been carried out due to lack of resources, the offer of bids that enable contemplations is admitted.

"Paragraph 2nd If there are still sufficient resources in the common fund for new contemplations and there is no longer an offer of bids, lotteries must be held.

"Paragraph 3rd The administrator who proceeds with contemplation without sufficient resources is responsible for the damages caused to the contemplated consortium member."

"Art. 15. The administrator must make the respective credit available to the contemplated consortium member:

I - until the first business day following the date of the assembly, in the case of contemplation by lottery;

II - until the third business day following the date of the assembly, in the case of contemplation by bid.

"Paragraph 1st The resources related to the credit referred to in this article must remain deposited in a linked account, applied in the manner provided for in Decree-Law No. 1,290, of 12.03.73.

"Paragraph 2nd In the consortium group linked to the price of the good, the general constitutive assembly may determine a period, up to ten business days, during which the group is responsible for any variation in the price of the good that occurs from the date of realization of the contemplation assembly.

"Paragraph 3rd If the constitutive assembly decides regarding the determination of a period for the effects of the previous paragraph, the same assembly must provide for the procedures to be adopted, in case the good referenced in the contract undergoes a price readjustment within the period in question and the group does not have sufficient resources in the common and reserve funds for its acquisition, while the difference is not paid by the respective participants of the group.

"Paragraph 4th The consortium member will have at their disposal for the acquisition of the good:

I - if participant of a group with credit linked to a price index or of a group that has not opted for the provision of Paragraph 2nd of this article, the value of the credit referred to in the "caput" of this article increased by the net earnings resulting from its financial application, in the manner of Paragraph 1st of this article, in the period comprised between the business day immediately following the date of contemplation until the last day prior to its effective use;

II - if participant of a group that has opted for the provision of Paragraph 2nd of this article:

a - if the good was acquired during the period in which the group was responsible for its price, the value of the good referenced in the contract valid on the day of its acquisition, observed that the net financial earnings obtained in said period are reverted in favor of the group;

b - if the good was not acquired during the period in which the group was responsible for its price, the value corresponding to the price of the good referenced in the contract valid on the last day of this period, increased by the net financial earnings obtained from the business day immediately following the expiration of said period until the business day immediately prior to its effective use."

"Art. 20. For the acquisition of the good:

I - the consortium member:

a - will have credit in the manner defined in Art. 15 of this Regulation;

b - must present the documents related to the guarantees required for the receipt of the good or set of goods, in the manner agreed upon in the adhesion contract, observed the provisions of Section II of this Chapter;

c - if they wish to opt for the acquisition of a good or set of goods different from that referenced in the adhesion contract or indicate another supplier or determine another moment for its acquisition, observed the regulatory provisions, the contemplated consortium member will formally request authorization from the administrator to invoice the good, informing in the request the description of the good or set of goods to be acquired, the respective price and the indication of the legal entity supplier, together with the presentation of the documents referred to in the previous letter;

II - the administrator must rule on the documents related to the guarantees, referred to in the previous item, within a maximum period of three business days counted from the date of their presentation and, observed this same period, make available to the contemplated consortium member, who is in the situation referred to in letter "c" of the previous item, authorization to invoice the good or set of goods, containing:

a - the description of the good or set of goods to be acquired and the indication of the legal entity supplier, as informed by the consortium member;

b - the value of the credit, if the price of the good or set of goods is equal to or greater than this value, or the value corresponding to the price of the good or set of goods, if the one informed by the consortium member is lower than the value of the credit;

c - the determination that the invoice must be issued with the caveat that the good or set of goods is fiduciary alienated to the administrator, if applicable;

d - information that the payment of the good or set of goods will be effected on the first business day subsequent to the presentation of the invoice;

III - the administrator must effect payment to the supplier of the good or set of goods on the first business day subsequent to the presentation of the invoice.

"Paragraph 1st The administrator may only effect payment of the good or set of goods to the supplier if the acquisition was made through invoicing authorization issued by it.

"Paragraph 2nd The administrator that does not observe the deadlines provided for in item II of this article will be responsible for the price difference that occurs subsequently to the presentation of the documents required from the contemplated consortium member."

"Art. 24. The administrator may require complementary guarantees proportional to the future installments, provided they are expressly provided for in the adhesion contract, unless the consortium member presents a bank guarantee or the group opts for insurance against guarantee breakage."

"Art. 26. The consortium member will also be subject to payment:

I - of life insurance premium and/or insurance against guarantee breakage, provided they are approved in the general ordinary assembly of constitution, observed the provision of item I of Art. 31 of this Regulation;

II - of installment differences, in the manner provided for in Section IV of Chapter VII of this Regulation;

III - of expenses, realized with the registration of the guarantees provided, including in cases of assignment, provided they are proven by the administrator;

IV - of interest up to 1% (one percent) per month and late penalty up to 10% (ten percent) calculated on the updated value of the monthly installments in arrears, in the manner provided for in Art. 39 of this Regulation;

V - of judicial collection expenses, in accordance with the sentence;

VI - of value corresponding to the group admission fee, observed the provision of Art. 35 of this Regulation;

VII - of value corresponding to the update of the credit referred to in Paragraph 2nd of Art. 15 of this Regulation, when applicable;

VIII - of expenses resulting from the purchase and/or delivery of the good, at the request of the consortium member, in a market different from that stated in the adhesion contract."

"Art. 28. The common fund will be constituted by the resources:

I - provided for in item I of Art. 25 and item II of Art. 42 of this Regulation;

II - derived from the financial application earnings of the resources of the fund itself;

III - originating from the payment, made by a consortium member admitted to the group in the quota of a withdrawing or excluded participant, of the contributions related to the common and reserve funds previously paid;

IV - derived from interest and penalties, in the manner of Art. 45 of this Regulation;

V - originating from the reduction of the value to be returned to a withdrawing or excluded participant, observed the provision of Art. 65 of this Regulation."

"Art. 29. The resources of the common fund will be used for:

I - acquisition of the goods or sets of goods of the contemplated consortium members;

II - return of amount collected in excess, referred to in item 2 of letter "b" of item II of Art. 62 of this Regulation;

III - restitution to participants, to withdrawers and to excluded persons of the group, upon its closure, observed the provision of Chapter IX of this Regulation;

IV - restitution of bid value, relative to the amount destined to the common fund, to the participant of the group whose contemplation has been canceled, observed the provision of Paragraph 2nd of Art. 16 of this Regulation;

V - restitution to participants, to withdrawers and to excluded persons of the group, in case of its dissolution, in the manner regulated in Chapter XIII of this Regulation."

"Art. 30. The reserve fund will be constituted by the resources:

I - provided for in item II of Art. 25 of this Regulation;

II - derived from the financial application earnings of the resources of the fund itself."

"Art. 31. The resources of the reserve fund will be used, prioritarily and in the following order, for:

I - payment of the guarantee breakage insurance premium, according to the rate established by the competent body;

II - coverage of eventual revenue insufficiency, in the monthly general ordinary assemblies, in order to allow the distribution by lottery of, at least, one credit for the purchase of a good;

III - coverage of installment difference, in the manner regulated in Art. 42 of this Regulation;

IV - restitution of bid value, relative to the amount destined to the reserve fund, to the participant of the group whose contemplation has been canceled, observed the provision of Paragraph 2nd of Art. 16 of this Regulation;

V - contemplation by lottery of a credit for acquisition of a good, when the amount of the fund itself reaches the equivalent to twice the value of the highest value good of the group;

VI - coverage of the return, to withdrawers and excluded persons, observed the provision of Art. 65 of this Regulation;

VII - payment of debts of delinquent consortium members, after exhausting all means of collection admitted in law;

VIII - return, to consortium members who have not been excluded or who are not withdrawers, of the balance existing at the end of the group operations, proportional to their monthly installments paid;

IX - restitution to participants, to withdrawers and to excluded persons of the group, in case of its dissolution, in the manner regulated in Chapter XIII of this Regulation.

"Sole Paragraph. In the event of use of the reserve fund in the manner provided for in item V of this article:

a - the value of the good will be shared among the participants of the group to amortize their respective debtor balances;

b - the appropriation of the value related to the administration fee is permitted, observed the value of the good, as well as the percentage of this value referring to the administration fee provided for in the contract."

"Art. 34. The administration fee will be fixed by the administrator in the consortium member's adhesion contract, the same percentage must be fixed for all participants of the group, being prohibited its alteration for higher during the duration period of the group.

"Paragraph 1st Non-profit associations may only charge the effective and proven expenses incurred with the management of the group.

"Paragraph 2nd The administration fee can be charged and must be compensated when there is, respectively, charging or return of installment difference, in the manner regulated in Section IV of Chapter VII of this Regulation."

"Art. 35. It is optional for the administrator to charge the consortium member at the time of formalizing their adhesion to the group:

I - the first installment, calculated in the manner provided for in Art. 25 of this Regulation, the resources must be applied in the manner provided for in Decree-Law No. 1,290/73;

II - percentage up to 4% (four percent) of the price of the good specified in the adhesion contract.

"Paragraph 1st The price of the good referred to in item II of this article must be the one valid on the date of adhesion.

"Paragraph 2nd Once the group is constituted:

I - the value charged referred to in item I of this article, increased by the respective net financial earnings, must be transferred to the group;

II - the percentage charged referred to in item II of this article must be compensated in the administration fee.

"Paragraph 3rd If the group is not constituted within ninety days counted from the formalization of adhesion, from the first business day following this period, the administrator must return to the adherent the values charged in the manner allowed by this article, increased by the net earnings resulting from its financial application in the manner provided for in Decree-Law No. 1,290/73.

"Paragraph 4th The amounts paid in the manner provided for in item I of this article, increased by the respective earnings resulting from their financial application, will be considered effective payment of the installment due by the consortium member on the date of the constitutive assembly of the group, observed the provision of Art. 25 of this Regulation."

"Art. 38. The consortium member may deduct the debtor balance of their installments in reverse order starting from the last, in whole or in part, exclusively:

I - by means of a winning bid;

II - in case of use of credit difference, in the manner defined in letter "b" of item II of Art. 19 of this Regulation;

III - to enable contemplations, provided the consortium member has been contemplated and the value of the advances, added to the availability, is sufficient for the acquisition of one or more goods object of the plan;

IV - if the group, in the constitutive assembly, decides on the possibility of advance payment of installments, in the manner of letters "b" and "c" of item IV of Art. 51 of this Regulation.

"Paragraph 1st The non-contemplated consortium member who pays in advance the installments provided for in the contract, in the manner provided for in this article, will have the right to acquire the good or set of goods after its contemplation by lottery.

"Paragraph 2nd The debtor balance comprises the unpaid value of the installments and the installment differences, referred to, respectively, in Art. 25 and Section IV of this Chapter, as well as the values due and unpaid provided for in Art. 26 of this Regulation.

"Paragraph 3rd The total settlement of the debtor balance can only be exercised by the contemplated consortium member whose good has already been acquired, ending their participation in the group, with the consequent release of the guarantees given."

"Art. 42. Installment differences are:

I - the amount collected less or more in relation to the price of the good or variation of the price index referenced in the contract, valid on the date of realization of the respective general ordinary assembly;

II - difference less or more verified in the balance of the common fund of the group that passes from one assembly to another resulting from alteration of the price of the good or variation of the price index occurred in the same period, in the manner provided for in the sole paragraph of this article.

"Sole Paragraph. Whenever the price of the good is altered or there is variation of the price index, the balance of the common fund of the group that passes from one assembly to another must be altered in the same proportion and the corresponding value converted into percentage of the price of the good, and the following must still be observed:

a - if the price of the good or the price index suffers an increase readjustment, the deficiency of the common fund balance must be covered by resources derived from the financial application of the resources of the fund itself, from the group's reserve fund and from the sharing among the participants of the group, obeying the order in which the alternatives are mentioned;

b - if the price of the good or the price index suffers a decrease readjustment, the excess of the common fund balance must be shared among the participants of the group;

c - the sharing referred to in letters "a" and "b" must be done proportionally to the percentages of the good paid by the active participants of the group;

d - in the occurrence of the situation referred to in letter "a", the charging of a portion related to the remuneration of the administrator falls upon, as well as the compensation of this portion in the occurrence of the provision of letter "b", being prohibited the charging or compensation of value referring to the reserve fund;

e - the amounts paid by the consortium member in the manner provided for in this paragraph must be book-kept distinctly in their current account and the corresponding percentage will not be considered for the purpose of amortization of monthly installments."

"Art. 43. The value related to the installment difference must be charged or compensated in the installment immediately following the date of its verification."

"Art. 48. Within sixty days after the contemplation of the participants of their respective groups, the placement at their disposal of the credits due for the purchase of goods or sets of goods and if the group's resources are sufficient for the return referred to in Art. 65 of this Regulation, the administrator must adopt the following procedures, in the order in which mentioned:

I - communicate, by letter or telegraphic notice, to the withdrawers and excluded persons, observed the provision of Art. 65 of this Regulation, that the values relative to the return of the amounts paid by them to the common and reserve funds are at their disposal;

II - communicate, by letter or telegraphic notice, to the participants of the group, except to the excluded and withdrawers, that the balances existing in the common and reserve funds are at their disposal, proportionally to the respective monthly installments paid."

"Art. 49. Thirty (30) days having elapsed from the sending of the communications referred to in the previous article, the administrator, monthly, must communicate to the participants of the group, except to the excluded and withdrawers, that the values relative to the receipt of the debts of delinquent consortium members are at their disposal, proportionally to the respective monthly installments paid."

"Art. 50. The closure of the group's operations must be effected within thirty days after the delivery of all goods due, the receipt of all debts or after exhausting all means of their collection admitted in law and the communication of the return of resources in the terms of Articles 48 and 49 of this Regulation.

"Sole Paragraph. If there are unclaimed resources by consortium members, withdrawers or excluded persons, on the date of the group's accounting closure, the administrator assumes the condition of debtor of the mentioned balances, complying with the legal provisions that regulate the creditor/debtor relationship of the Brazilian Civil Code."

"Art. 51...........................................

IV - put to the decision of the group:

a - the period provided for in Paragraph 2nd of Art. 15 of this Regulation;

b - referenced in goods to which this Regulation applies, the option for advance payment of future installments, in reverse order, throughout the group, both by contemplated consortium members and by non-contemplated ones;

c - referenced in trucks, buses, tractors, road equipment, machines and agricultural equipment, aircraft and vessels, the option for advance payment of future installments, in direct order, throughout the group, both by contemplated consortium members and by non-contemplated ones;

d - the option for guarantee breakage insurance and/or life insurance."

"Art. 64...............................

"Paragraph 1. The withdrawal shall observe the following:

I - it shall be effective on the date of the request;

II - the amounts eventually paid by the consortium member for any reason shall be returned immediately, plus the earnings from their financial application, provided that they did not participate in the contemplation in the ordinary general assembly and has withdrawn:

a - within a period of seven days from the signing of the adhesion contract, whenever the contracting occurs outside the premises of the administrator;

b - in the situations referred to in Paragraph 3 of Article 51 of this Regulation.

III - in other cases, only the amounts paid to the common fund and the reserve fund shall be returned, as provided in Article 65 of this Regulation."

"Article 65. To withdrawing or excluded participants, or to their successors, the amounts paid by them to the common and reserve funds shall be returned within the period established in Article 48 of this Regulation, observed that:"

"Article 66........................................................

III - the installments already paid by the excluded or withdrawing member shall be liquidated by the admitted consortium member, until the deadline provided for the closure of the group, according to the value valid on the day of the assembly of the month, and the amounts received shall be credited to the common fund of the group."

"Article 68........................................................

XIV - the provision for the consortium member to be able to withdraw from the contract under the terms of Article 64 of this Regulation;"

"Article 70. The difference in the life insurance indemnity, if any, after amortizing the outstanding balance of the consortium member, shall be immediately delivered by the administrator to the beneficiary indicated by the holder of the quota or, in their absence, to their successors."

Article 2. Introduce into the Regulation annexed to Circular No. 2,196, of 30.06.92, Articles 73 and 74 with the following wording:

"Article 73. The un-contemplated consortium member may request, on a single occasion, a change of the asset object of their participation for another of lower value, within the same group, provided that:

I - the group is referenced in assets of differentiated prices, as permitted in Article 9 of this Regulation;

II - the new asset is available in the market;

III - the price difference does not exceed 50% (fifty percent) of the value of the asset object of the initial participation of the consortium member, respecting the price of the asset that integrates the category of lower value in the group, in the case of groups of assets of differentiated prices;

IV - the price of the new asset is not lower than the updated value of the contributions paid to the common fund of the group, on the date of the assembly prior to the request for the change.

"Paragraph 1. In the consortium group linked to the price of the asset, the change of asset implies a recalculation of the amortized percentage, which shall be made based on the price of the new asset valid on the date of the assembly prior to the request for the change, observed that if there is an outstanding balance, its monthly amortization shall be made by applying the same percentage of the original plan to the price of the new asset.

"Paragraph 2. In the consortium group linked to a price index, the change of asset implies a recalculation of the amortized value, which shall be made based on the value of the installment paid on the date of the assembly prior to the request for the change, multiplied by the quantity of installments already paid and the price of the new asset valid on the date of the assembly prior to the request for the change, and, if there is an outstanding balance, its monthly amortization shall be made by dividing the value of the outstanding balance by the quantity of pending installments, observing the duration of the group.

"Paragraph 3. If there is no outstanding balance, the consortium member:

I - shall only have the right to acquire the asset upon its contemplation by lottery;

II - shall be subject, until the receipt of the asset, to the payment of the installment difference referred to in item II of Article 42 of this Regulation."

"Article 74. Safeguarding the interests of the group and the contemplated consortium member, the administrator may deliver to the supplier of the asset, after contemplation, the order for the supply of the asset referenced in the contract, as well as make the respective payment to guarantee the price valid on the date of the contemplation assembly.

"Paragraph 1. If the contemplated consortium member opts for the acquisition of an asset different from that referenced in the adhesion contract or indicates another supplier or wishes to determine another moment for their acquisition, observing the regulatory deadlines, they must formally manifest themselves at the time of presentation of the required guarantees and, if applicable, until the end of the group's liability period, as provided in Paragraph 2 of Article 15 of this Regulation.

"Paragraph 2. Occurring any of the hypotheses provided in the previous paragraph, the administrator shall return to the group the value of the credit plus an amount corresponding to the respective net financial earnings as if they had been applied in the manner provided in Decree-Law No. 1,290/73, observing, where applicable, the provisions of Article 15 of this Regulation."

Article 3. The modifications introduced by this Circular into the Regulation annexed to Circular No. 2,196/92, if approved by the members of the groups constituted based on that Regulation until the date of publication of this normative, may be applied to the cited groups.

Article 4. The Central Bank may determine the impediment of the administrator to constitute consortium groups referenced in any movable or immovable assets or in air travel tickets whenever it finds irregularities against the company or its administrators, characterized by non-compliance with the legislation and current regulatory norms, or finds pending issues with consumer defense agencies, until the irregularities that motivated the impediment are resolved.

Sole Paragraph. The administrator may only resume constituting consortium groups after the irregularities that motivated the impediment are resolved and with prior authorization in a specific process formalized with the Regional Branch of the Central Bank that has jurisdiction over its headquarters.

Article 5. This Circular enters into force on the date of its publication.

Article 6. Paragraphs 1 and 2 of Article 5 and Article 41 of the Regulation annexed to Circular No. 2,196, of 30.06.92, are revoked.

Brasília, December 22, 1993

Cláudio Ness Mauch
Director of Norms and Organization of the Financial System

Note: Re-transmitted due to errors in Article 1: "Article 20, item I, letter "a"; in Article 2: "Article 74, Paragraph 2."