When a company signs a fixed-rate — or hybrid — business credit note (CCB) in Brazil, the natural expectation is that the price stays stable, save for clear, objective triggers like a contractually defined index. In some audited contracts, however, a clause breaks that logic at the root: authorization for the lender itself, unilaterally and at its own discretion, to recalculate the interest rate during the life of the contract.
This kind of provision is technically classified as a potestative clause: one whose fulfillment — here, setting the contract's own price — rests solely on one party's discretion. In one expert opinion underlying this analysis, a working-capital operation backed by Brazil's FGI-PEAC guarantee fund, worth roughly R$150,000 to R$160,000, had this clause as a central pillar of the abusiveness claim.
In this analysis
How the clause usually appears in the contract
In the cases reviewed, the wording rarely says, explicitly and alarmingly, "the bank may change the rate whenever it wants." The contractual engineering is subtler: the clause states the rate may be "recalculated" under certain circumstances — market condition changes, the institution's credit-policy revisions, risk reassessment — without defining an objective parameter, a verifiable index, or an auditable formula for the new rate. Absent that parameter, what remains is pure lender discretion: it decides whether to recalculate, when, and to what level.
In contracts tied to public-backed credit lines — such as the audited case, with a public guarantee covering up to 80% of the risk via FGI-PEAC — this clause becomes even more serious: the public program is designed, by regulation, with a rate ceiling and the express purpose of lowering the SME's cost of credit, precisely because the bank's risk is already largely covered by the guarantee fund. A clause letting the bank unilaterally recalculate the rate hollows out that protection: the program's ceiling becomes a starting reference, not an effective guarantee throughout the contract's life.
Why it is a barred potestative clause
Article 122 of Brazil's Civil Code bars conditions that make a legal transaction's validity depend on one party's pure discretion — and legal doctrine and case law extend that reasoning to clauses that, while not formally structured as a "condition," produce the same practical effect. In the case audited, the technical analysis identified three central flaws:
No auditable parameter. There was no mathematical formula, market index, or verifiable parameter tied to the "recalculation" the clause described.
No advance notice or exit right. The contract set no notice period or termination right — payoff without penalty — for a borrower who disagreed with the new rate.
Part of a broader pattern. The clause coexisted with others that already pushed the effective cost above the public program's own ceiling — the unilateral recalculation was not an isolated theoretical scenario.
Legally, this kind of provision directly tensions Article 51, IV of the Consumer Protection Code (voiding clauses that create excessive disadvantage for the adhering party), Article 52 (duty of clear disclosure of charges), and the good-faith and social-function-of-contract principles in Articles 421-422 of the Civil Code. When the credit is tied to a public support program, there is also a regulatory-deviation issue: the program's rate ceiling (Law 14.042/2020) loses practical effect once a clause lets the lender itself reposition the credit's price over time.
Does your contract have a unilateral rate-recalculation clause?
Request a technical review of the clause before signing — or a forensic review if the contract is already signed.
How to spot this clause before signing
Not every rate-revision clause is abusive — indexing to a public, verifiable benchmark (SELIC, CDI, IPCA) is legitimate and generally sound market practice, provided it is clear and leaves the lender no extra discretion over the spread. The problem is specifically clauses using vague language like "at the bank's discretion," "per internal policy" or "upon risk reassessment," with no reference to an auditable index or formula; that set no maximum cap for any recalculation; or that give the borrower no advance notice and no chance to technically contest the new rate before it applies.
What to do
- Require any rate-revision possibility to be tied to a public, verifiable index — never to the lender's "discretion" or "internal policy."
- Demand a rate-cap clause — an absolute maximum the rate can never exceed, regardless of any recalculation.
- Secure, contractually, advance notice and an exit right (no-penalty payoff) if the bank proposes a unilateral change.
- If the credit is under a public support program, check any recalculation clause against that program's own regulatory ceiling — and put any discrepancy in writing before signing.
A credit contract only fulfills its purpose of giving a company predictability for financial planning if its price — the interest rate — is genuinely stable and verifiable. A clause that hands the bank the power to recalculate that price over time, with no objective parameter, is not a market adjustment: it is the transfer, into the contract itself, of the very risk the credit was supposed to mitigate.
This article is part of a series on technical pathologies in business credit operations, based on expert opinions prepared by the author. Individual cases are treated in aggregate and anonymized form, with no identification of the companies or individuals involved.
Frequently asked questions
What is a potestative clause in a credit contract?
It is a clause whose fulfillment — here, setting the contract's own price — depends solely on one party's discretion, with no objective, verifiable parameter outside that party's will. Article 122 of Brazil's Civil Code bars conditions of this kind.
Is every interest-rate revision clause abusive?
No. Indexing to a public, verifiable benchmark such as SELIC, CDI or IPCA is legitimate market practice. The problem is clauses using vague language like "at the bank's discretion" or "per internal policy," with no reference to an auditable index or formula.
What is the legal basis for challenging a unilateral rate-change clause in Brazil?
Article 122 of the Civil Code, which bars conditions left to one party's pure discretion; Article 51, IV of the Consumer Protection Code, voiding clauses that create excessive disadvantage; Article 52, on the duty of clear disclosure; and Articles 421-422, on the contract's social function and good faith.
What should I do if my Brazilian credit contract has a unilateral rate-recalculation clause?
Require any rate revision to be tied to a public, verifiable index, negotiate a hard rate cap, secure advance notice and a no-penalty payoff right if the bank alters the rate, and if the credit is under a public program, check the clause against that program's own regulatory ceiling.
Dr. Lincoln Sposito
Specialist in banking audits and financial forensics, combining the statistical rigor of data science with the analysis of banking-system architectures to dismantle predatory charges against SMEs. Learn more about the expert →