As is known, failure to complete or delay in the construction of works by the developer may give rise to compensation for losses and damages to the purchasers in view of the losses experienced, as well as the possibility of early termination of the contract.
However, the injured party cannot simultaneously avail itself of compensation and contract termination. This was the understanding of the Superior Court of Justice when ruling on Resp 1,750,585.
In this specific case, the prospective buyer of a property off-plan sought compensation for losses and damages for what he allegedly failed to gain from the increase in value of the property between the date he entered into the purchase and sale agreement and the date on which the work should have been completed.
For the STJ, the appreciation of the property does not fall within the concept of losses and damages, does not represent a reduction in the purchaser’s assets, nor does it mean the loss of a gain that should have been legitimately expected.
In this regard, it was understood that if the purchaser opts for contractual termination due to delay in delivery of the property, he cannot claim damages in the event of a possible increase in the value of the property.
