Commentary on Judgment No. 40272 of 2024 on Usury: Clarifications on Interest Rate Determination

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 interest rates. The Court has established that fiscal and tax effects related to a loan must not be included in the calculation of the usurious interest rate referred to in art. 644 of the criminal code. This decision responds to a need for clarity in the matter and is part of a legal context characterized by growing 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 tax deductions and withholdings, must not be considered in the calculation of the usurious interest rate, as they are not directly connected to the disbursement of credit. This aspect is crucial for understanding the dynamics governing loan agreements and for ensuring adequate protection for debtors. The Court clarified that:

Usurious interest rate - Determination - Relevant elements – Factual circumstances. In matters of usury, the fiscal and tax effects of the loan (such as deductions, tax withholdings, etc.), even if reported in the income tax return, are separate from the calculation of usurious interest pursuant to art. 644, fourth paragraph, of the criminal code, as they are not linked to the disbursement of credit. (Factual circumstances in which the Court held that neither the tax deductions indicated by the debtor, such as cost savings, in the income tax return, nor the creditor's tax outflows, constituting an increase in expenses, should be taken into account for this purpose, as they are not linked to the initial moment of disbursement, but rather represent consequences of the subjective imputation 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 on the basis of the contractual conditions at the time of credit disbursement, 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 challenge usurious practices without fear of having to consider tax factors.
• Clarity and uniformity in jurisprudence, helping to avoid arbitrary interpretations by financial institutions.
• A reminder of the importance of correct information and transparency on the part of 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 matter. It is essential that all actors in the financial sector take note of these indications to ensure a fairer and more transparent market.