Circular No. 3084 — Financial Obligations, Unclaimed Resources, Advances to Suppliers, Expense Aggregation, and Group Closure in Consortium Operations

CIRCULAR NO. 003084

Dispenses with financial obligation, unclaimed resources, advances to suppliers, expense aggregation, and group closure in consortium operations.

The Collegiate Board of the Central Bank of Brazil, in a session held on January 30, 2002, based on Art. 33 of Law No. 8,177, of March 1, 1991,

D E C I D E D:

Art. 1. Amend Arts. 3, 10, 21, 22, and 23 of the Regulation annexed to Circular No. 2,766, of July 3, 1997, which shall enter into force with the following wording:

"Art. 3. The adhesion contract is the instrument, signed by the consortium member and the consortium administrator, that creates a mandatory legal bond between the parties and by which the consortium member formalizes their entry into a consortium group, with the conditions of the consortium operation expressed therein, as well as, clearly and explicitly, the rights and duties of the contracting parties, which must include, at a minimum:

I - the complete identification of the contracting parties;

II - the description of the good, set of goods, or tourist service, as well as the criterion for defining its price, which will serve as a reference for the calculation of participants' contributions and for fixing the value of the credit to be distributed in the contemplation assemblies;

III - the establishment of the administration fee rate;

IV - the duration of the contract;

V - the financial obligations of the consortium member, including those that may be established as a result of:

a) insurance contracting;

b) contractual default;

c) expenses incurred with deeds, taxes, fees, and registration of guarantees provided;

d) advance payment of the administration fee;

e) purchase and delivery of the good, at the request of the consortium member, in a market different from that stated in the adhesion contract;

f) delivery, at the request of the consortium member, of a second copy of a document;

g) collection of a banking fee, when payment is made through a financial institution;

h) collection of a fee on amounts not claimed by consortium members or excluded, observing the provisions of Art. 21;

VI - the conditions to compete for contemplation by lottery and its form, as well as the rules for contemplation by bid;

VII - the possibility or not of advance payment by a non-contemplated consortium member, if applicable, and of advance payments by a contemplated consortium member, as well as the conditions of these advances;

VIII - the right of the contemplated consortium member to dispose, for the acquisition of the good, set of goods, or tourist service, of the value of the credit distributed in the assembly of the respective contemplation, increased by the net financial earnings proportional to the period in which the credit value was applied;

IX - the option of the contemplated consortium member, observing the provisions of Art. 9, provided that guarantees compatible with the respective outstanding balance are presented:

a) acquire, from a supplier or seller of their choice:

1. motor vehicle, aircraft, vessel, agricultural machinery, and road equipment, new or used, if the adhesion contract is referenced in any of the new goods mentioned in this item;

2. any durable movable good or set of durable movable goods, new, except those referred to in item 1, if the adhesion contract is referenced in a durable movable good or set of durable movable goods not mentioned in item 1;

3. tourist service, if the adhesion contract is referenced in a tourist service;

b) if the adhesion contract is referenced in real estate, acquire any real estate, built or under construction, land, or opt for construction or renovation, provided it is in a municipality where the administrator operates or, if authorized by it, in a different municipality;

c) receive the credit value in cash, upon settlement of their obligations with the group, if they have not used the respective credit within 180 days after contemplation;

X - the procedure to be observed for the acquisition and payment of the good, set of goods, or tourist service, with the establishment of a deadline within which the administrator will make the payment to the supplier, observing the provisions of Art. 10;

XI - the guarantees that will be required from the contemplated consortium member for the acquisition of the good, set of goods, or tourist service, allowing the substitution of the guarantee, with prior authorization and responsibility of the administrator, which will justify the denial of authorization;

XII - the provisions to be observed for the transfer of rights and obligations arising from the adhesion contract;

XIII - the conditions of contractual default that may cause:

a) exclusion of the consortium member from the group, excluding the exclusion of a contemplated consortium member;

b) cancellation of contemplation, in the form of Art. 9-A;

XIV - the right of participants excluded due to declared withdrawal or contractual default, or of their successors, to the return of amounts paid.

Sole Paragraph 1. For the purpose of calculating the amount to be returned based on item XIV, regarding the value of the credit in effect on the date the exclusion occurred or on the date of the general assembly of contemplation of the last quota of the group, as provided in the contract, the following must be:

I - apply the percentage of the value of the good, set of goods, or tourist service, amortized by the participant to the common fund of the group and, if applicable, to the reserve fund;

II - add to the result obtained, in the form of item I, the earnings from the financial application, accrued between one of the dates referred to in the main text of this paragraph and the day prior to the payment to the excluded participant.

Sole Paragraph 2. The loss that the withdrawer or defaulter causes to the group must be deducted from the value calculated in the form of Paragraph 1, and the product of the deduction must be applied to the common fund, prorated proportionally to the value of the contributions paid, in accordance with the provisions of Art. 53, main text and Paragraph 2, of Law No. 8,078, of September 11, 1990.

Sole Paragraph 3. The guarantee provided by consortium members must respect the nature of the good or service that is the object of the contract:

I - for movable goods: fiduciary alienation;

II - for real estate: mortgage or fiduciary alienation;

III - for tourist service: guarantee break insurance.

Sole Paragraph 4. The administrator may require complementary guarantees proportionally to the value of the future installments, provided they are expressly stipulated in the adhesion contract.

Sole Paragraph 5. The administrator will indemnify the group in the event of any losses resulting from the approval of insufficient guarantees, on the date of credit utilization or guarantee substitution, or from the release of guarantees while the consortium member has not settled their participation in the group." (NR)

"Art. 10. The administrator will make the payment for the good, set of goods, or tourist service within a timeframe compatible with that practiced in the market for cash sales or in the manner agreed between the contemplated consortium member and the seller or supplier of the good or service, observing the other conditions established in this article.

Sole Paragraph 1. If the consortium member, after the respective contemplation, has paid with their own resources any amount for the acquisition of the good, set of goods, or tourist service, they are entitled to receive the value of this credit in cash, up to the amount of the respective credit, observing the contractual provisions.

Sole Paragraph 2. The administrator may only transfer resources to third parties for the payment of the good, set of goods, or tourist service, after having been formally notified by the contemplated consortium member of their option, guarantees satisfied, if applicable, and upon presentation of the documents listed in the adhesion contract as mandatory, observing that:

I - the formal notification must include:

a) the complete identification of the contemplated consortium member and the seller or supplier of the good or service, with the address and the number of registration in the Individual Taxpayer Registry (CPF) or the National Registry of Legal Entities (CNPJ);

b) the characteristics of the good, set of goods, or tourist service that is the object of the option and the payment conditions agreed between the contemplated consortium member and the seller or supplier;

II - the transfer of resources to third parties, as an advance, is permitted, without prejudice to the observance of the provisions of this article, provided it is conditioned on the formalization of the contract between the supplier or seller of the good or tourist service and the administrator, who assumes full responsibility for the operation, including regarding the adequate accounting of the transferred value and the respective obligation in its balance sheet accounts.

Sole Paragraph 3. If the contemplated consortium member acquires a good, set of goods, or tourist service, at a price lower than the value of the respective credit, the difference must be used, at the discretion of the consortium member, for:

I - satisfying guarantees, if applicable, payment of financial obligations, linked to the good or service, in favor of notary offices, traffic departments, and insurance companies, limited to 10% (ten percent) of the value of the credit subject to contemplation;

II - settlement of future installments in the manner established in the adhesion contract;

III - return of the credit in cash to the consortium member when their financial obligations to the group are fully settled." (NR)

"Art. 21. Within sixty days, counted from the date of the realization of the last contemplation assembly of the consortium group, the administrator must communicate:

I - to consortium members who have not used their respective credits, that the same are available for receipt in cash;

II - to participants excluded due to declared withdrawal or contractual default, that the balance relative to the amounts paid by them is available for return in cash, observing the provisions of Art. 3, item XIV, and Paragraphs 1 and 2;

III - to other consortium members, that the remaining balances in the common fund and, if applicable, in the reserve fund, are available for return in cash, proportionally to the value of their respective installments paid.

Sole Paragraph. The financial availability remaining on the date of the accounting closure of the group, as referred to in Art. 22, main text, are considered unclaimed resources by consortium members or participants excluded due to declared withdrawal or contractual default." (NR)

"Art. 22. The accounting closure of the group must occur within a maximum period of 120 days, counted from the date of the realization of the last contemplation assembly of the consortium group and provided that at least thirty days have passed since the communication referred to in Art. 21, transferring to the administrator:

I - the unclaimed resources by consortium members or participants excluded due to declared withdrawal or contractual default;

II - the values pending receipt, subject to judicial collection.

Sole Paragraph 1. For the purposes of the provisions in the main text, the administrator assumes the status of debtor of the beneficiaries, complying with the legal provisions contained in the Brazilian Civil Code that regulate the relationship between creditor and debtor.

Sole Paragraph 2. The values transferred to the administrator must be listed individually, containing, at a minimum, name, number of registration in the CPF or CNPJ, value, numbers of the group and quota, and the address of the beneficiary.

Sole Paragraph 3. The unclaimed resources transferred to the administrator must be remunerated in the form of the current regulation applicable to resources of consortium groups in progress.

Sole Paragraph 4. The values pending receipt referred to in the main text, item II, once recovered, must be prorated proportionally among the beneficiaries, and the administrator must, within thirty days after their receipt, notify them that the respective balances are available for return in cash.

Sole Paragraph 5. The financial availability remaining 120 days after the recovery, as referred to in Paragraph 4, will be considered unclaimed resources.

Sole Paragraph 6. Exhausted all means of collection admitted in law, the administrator will write off the values not received.

Sole Paragraph 7. The unclaimed resources, regardless of their origin, must be accounted for in a specific account.

Sole Paragraph 8. In the period between the realization of the last contemplation assembly and the accounting closure of the group, except in the case of intervention or extrajudicial liquidation of the consortium administrator, the transfer of the respective group, as well as its resources, to another consortium administrator is prohibited." (NR)

"Art. 23. The consortium member who is admitted to the group in substitution for the participant excluded due to declared withdrawal or contractual default, will be obligated to pay the contract installments, observing the provisions as follows:

I - the future installments will be collected normally, in the manner provided contractually for the other participants of the group;

II - the installments and differences of overdue installments, pending payment at the time of adherence of the substitute consortium member, and the installments already paid by the excluded participant, will be settled by the admitted consortium member, until the deadline provided for payment of the last installment of the respective group, updated according to the provisions of Art. 3, Paragraph 1." (NR)

Art. 2. Arts. 9-A and 25-A are included in the Regulation annexed to Circular No. 2,766, of 1997, with the following wording:

"Art. 9-A. The ordinary general assembly of the group may determine the cancellation of the contemplation of the consortium member who, having not used the respective credit, becomes delinquent for the period defined in the adhesion contract, in the manner established in Art. 3, item XIII.

Sole Paragraph. Cancelled the contemplation, the consortium member returns to the status of active non-contemplated participant in default."

"Art. 25-A. Consortium administrators are obliged to, in the ordinary general assemblies of the groups, make available to the consortium members, a complete list with the name and address of all participants of the group to which they belong, providing a copy whenever requested and presenting, when applicable, a document in which the disagreement of the consortium member with the disclosure of this information is formalized.

Sole Paragraph. The list referred to in the main text must be updated whenever there is withdrawal, exclusion, or inclusion of a consortium member, recording the reasons for the alterations made."

Art. 3. The consortium group, regardless of the date of its constitution, whose realization of the last contemplation assembly occurred prior to January 31, 2002, must have its respective accounting closure provided for within a maximum period of 120 days counted from the entry into force of this circular, observing the provisions established in Arts. 21 and 22 of the Regulation annexed to Circular No. 2,766, of 1997, with the wording given by this circular.

Art. 4. This circular enters into force on the date of its publication.

Art. 5. Circulars No. 2,774, of August 27, 1997, and No. 2,797, of December 23, 1997, and item III of Art. 25 of the Regulation annexed to Circular No. 2,766, of July 3, 1997, are hereby repealed.

Brasília, January 31, 2002

Sérgio Darcy da Silva Alves
Director