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Temas atuais de direito comparado / Current trends in comparative law: Relatórios Brasileiros do Vigésimo Congresso Internacional de Direito Comparado / Brazilian reports for twentieth international congress of comparative law – Fukuoka
Temas atuais de direito comparado / Current trends in comparative law: Relatórios Brasileiros do Vigésimo Congresso Internacional de Direito Comparado / Brazilian reports for twentieth international congress of comparative law – Fukuoka
Temas atuais de direito comparado / Current trends in comparative law: Relatórios Brasileiros do Vigésimo Congresso Internacional de Direito Comparado / Brazilian reports for twentieth international congress of comparative law – Fukuoka
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Temas atuais de direito comparado / Current trends in comparative law: Relatórios Brasileiros do Vigésimo Congresso Internacional de Direito Comparado / Brazilian reports for twentieth international congress of comparative law – Fukuoka

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This work shows the growing interest and participation of Brazilian lawyers in comparative law. It contains the contributions presented to the 20th General Congress of the International Academy of Comparative Law – IACL held in Fukuoka, Japan, in 2018.
The variety of approaches points to the interdisciplinarity that was sought out by the International Academy of Comparative Law. Furthemore, the presence of eminent professors and distinguished professionals from the Brazilian legal universe demonstrates the importance of the comparative view in Brazil.
In addition, the book will allow for greater visibility of the Brazilian presence at the prestigious event. With this initiative, we hope to pave the way for the organization of events expected to take place in Latin America in 2022 and to arise an even greater interest in comparative law within academic and professional circles.

Esta obra consagra o crescente interesse e participação de juristas brasileiros no direito comparado. São aqui coligidas as contribuições apresentadas ao Congresso da International Academy of Comparative Law – IACL em Fukuoka, Japão, no ano de 2018.
A variedade das abordagens aponta a interdisciplinaridade almejada pela Academia. Ademais, a presença de ilustres professores e profissionais destacados do universo jurídico brasileiro demonstra a importância da visão comparatista no nosso meio.
Por outro lado, o livro permitirá uma maior visibilidade da presença brasileira no importante evento. Esperamos, com esta iniciativa, pavimentar o caminho para que a organização dos eventos previstos para a América Latina em 2022 desperte interesse ainda maior nos meios acadêmicos e profissionais.
IdiomaPortuguês
Data de lançamento15 de dez. de 2021
ISBN9788582386934
Temas atuais de direito comparado / Current trends in comparative law: Relatórios Brasileiros do Vigésimo Congresso Internacional de Direito Comparado / Brazilian reports for twentieth international congress of comparative law – Fukuoka
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    Temas atuais de direito comparado / Current trends in comparative law - Gustavo Tepedino

    Prefácio

    A publicação dos relatórios brasileiros ao 20º Congresso da Academia Internacional de Direito Comparado, que se realizou em Fukuoka, no Japão, em julho de 2018, é uma importante contribuição ao desenvolvimento e renovação do nosso direito comparado. O livro foi organizado pelos professores Gustavo Tepedino e Marilda Rosado de Sá Ribeiro e contém 18 colaborações dos nossos melhores juristas sobre os temas os mais diversos, mas todos de grande atualidade. O livro abrange textos de direito civil, direito bancário, organização judiciária, contratos de seguros, negociações coletivas, problemas familiares, mudanças climáticas, proteção do consumidor, responsabilidade social, proteção internacional dos dados, garantia constitucional de acesso aos bens fundamentais, propriedade intelectual e os efeitos da comparação jurídica. São verdadeiras monografias de mestres oriundos das várias regiões do país. É um conjunto de excelentes contribuições, cuja leitura é da maior utilidade para todos aqueles que querem estar em dia com a evolução da nossa legislação e do direito comparado no século XXI.

    Por outro lado, a obra marca o início de uma nova fase dos estudos da matéria em nosso país pela participação de duas dezenas de juristas, magistrados e advogados, que está sendo divulgada no exterior, por uma das mais importantes entidades especializadas, que breve festejara o seu centenário. Efetivamente, a Associação foi criada em 1924 e tem realizado os seus congressos internacionais de quatro em quatro anos. As suas finalidades são a divulgação do direito comparado como meio de aproximação entre os povos, a reforma e o aprimoramento das leis nacionais e o aperfeiçoamento do ensino jurídico. Na realidade, o direito comparado enriquece a dogmática jurídica, abrindo aos advogados, que aplicam os seus direitos nacionais, novos horizontes para ultrapassar os limites eventualmente existentes na sua legislação nacional e permitir a evolução construtiva do direito, muitas vezes com novas ferramentas, que não são apenas importadas, mas em geral adaptadas e até renovadas.

    O direito comparado adquiriu a sua autonomia e passou a ser considero como ramo da ciência jurídica, com estudos sistemáticos, no fim do século XIX e início do século XX, ganhando novo impulso na Europa, após a primeira grande guerra (de 1914), quando foi criada a associação e se expandiu após a Segunda Guerra Mundial, dando ensejo a criação de entidades nacionais e internacionais especializadas. A Liga das Nações e, em seguida, a ONU e a UNESCO, apoiaram essas iniciativas, considerando que poderiam evitar conflitos e permitir a melhor compreensão entre nacionais e estrangeiros nos diversos países.

    No Brasil, além de algumas obras sérias, mas pontuais, publicadas na primeira metade do século XX, o nosso Direito Comparado se firmou a partir da década de 1950, quando passou a ser criado o Instituto de Direito Comparado sob a direção de San Tiago Dantas e o Comitê Nacional de Direito Comparado, organizado por Haroldo Valladão. Ambos fortaleceram tanto o ensino do Direito Comparado no país como as nossas relações com associações internacionais e entidades estrangeiras que se dedicavam ao assunto.

    É a época a partir da qual tivemos relatórios brasileiros nas reuniões Internacionais e vários congressos chegaram a ser realizados no Brasil com a Association Henri Capitant e a Société de Legislation Comparée, além de Jornadas binacionais que fizemos com os juristas argentinos.

    No quarto Congresso da Associação Internacional de Direito Comparado, que ocorreu em Paris, em 1954, a entidade estava se reorganizando, sem meios materiais, mas com o entusiasmo e a dedicação de alguns juristas que tinham sido professores nos seus países de origem, mas estavam exilados em Paris. Na ocasião, eu me tinha formado no ano anterior e estava preparando a minha tese de doutorado, trabalhando com o Professor René David, aproveitando uma bolsa que recebi do governo francês. Foi quando o Professor Haroldo Valladão me pediu que fosse procurar, na Faculdade de Direito, o Professor Elemér Balogh que estava reconstruindo a Associação que não pudera funcionar durante a Guerra. Encontrei-o na biblioteca da Faculdade, perdido no meio de livros e papeis, que o escondiam atrás da sua escrivaninha. Não tinha secretária, e escrevia a mão convites para uma centena de juristas do mundo inteiro para convidá-los a comparecer para o Congresso de 1954. Recebeu-me muito bem e acertamos o envio de quatro relatórios brasileiros, um do Professor Caio Mario sobre investigação de paternidade no direito comparado, outro do professor Armando Dias de Azevedo sobre a ordem jurídica canônica e dois meus, a respeito da responsabilidade civil dos administradores de sociedade anônimas e do serviço público no Brasil.

    Decorridos mais de 60 anos, é com grande emoção que verifico que houve um paralelismo entre a evolução e a institucionalização da Associação Internacional e a contribuição brasileira aos seus Congressos. Ambos se institucionalizaram e cresceram, dando assim ao Direito Comparado brasileiro uma nova posição no cenário internacional, que se refletiu no Congresso realizado no Japão e que certamente manteremos e continuaremos desenvolvendo no futuro. Os relatórios apresentados constituem um testemunho relevante dessa evolução.

    Ao evocar meu primeiro contato com Elemér Balogh, sensibiliza-me profundamente o fato de termos assegurado uma continuidade de nossos trabalhos e, em particular, de ter a publicação sido organizada por dois professores de minha faculdade (a UERJ). Efetivamente, Gustavo Tepedino é meu sucessor na cátedra e foi colega de meu filho e Marilda Rosado, além de ter sido minha aluna, foi quem, então como advogada da Petrobras, me contratou para defender a empresa numa das minhas primeiras arbitragens. Entre os demais autores de artigos publicados no livro, encontramos vários amigos que evidenciam o encontro de gerações no estudo do direito comparado.

    Vemos assim que, se o passado ajuda a compreender o presente, a nossa vida exige que olhemos para frente. Podemos, pois, saudar esta nova fase do nosso direito comparado, que aliás, se integra no Brasil das grandes reformas que queremos realizar e corresponde à abertura da nossa economia, da nossa sociedade, da nossa política e à consolidação da democracia brasileira. Ao lado e em complemento das novas tecnologias e das reformas econômicas e sociais, o direito comparado pode ser um catalisador dessas transformações para assegurar a reconstrução da nossa legislação e da nossa justiça tornando-as mais eficazes e equitativas para aplicarmos um direito que seja mais justo.

    São Paulo, 01.12.2019

    ARNOLDO WALD

    Foreword

    The International Academy of Comparative Law (IACL) was founded in 1924. Since then, the institution plays an important role in promoting comparative research in law and in stimulating the comparative study of legal systems throughout the world. The Academy represents a body of scholars that currently has more than seven hundred members from many different countries. The majority of them are academics; however, they include judges of supreme national and international courts as well.

    In 1932 and 1937, the Academy organized its first two general international congresses at The Hague; and since 1950, they have been held every four years in various cities in many different nations. Until 1970, they took place in Europe and, afterwards, in the Americas, Australia and Asia also. In 2018, Fukuoka, Japan, hosted the IACL General Congress, where international representatives from differing legal cultures were able to present reports on the development of their national laws.

    A total of 27 topics were selected by the members of the IACL to be discussed at the Congress in 2018. However, before this event, national reporters received a questionnaire related to the specific themes. Later, general comparative legal studies will be elaborated and published on each topic. These publications are based on the aforementioned questionnaire responses, permitting easy access to the main differences and similarities in the legal regulations of national regimes. The contributions can be presented within a great variety of topics, ranging from the more general, such as Comparative Law and Multicultural Legal Classes: Challenge or Opportunity? or Reconciling Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age to the more specific, like Information Obligations and Disinformation of Consumers or Anti-suit Injunctions in Arbitral and Judicial Procedures.

    This book contains 18 reports that were elaborated by Brazilian authors for the Fukuoka Congress.

    Professor Aline de Miranda Valverde Terra analysed crowdfunding regulation in Brazil, its modalities, operating principles, controversies and practical challenges. The author brings particular attention to the questions that are related to the supervision of crowdfunding activity as well as to the obligations and duties of the parties involved: platform (providers), contributors and project directors.

    Professor Ana Carla Harmatiuk Matos analyses the situation regarding the legal recognition of Trans persons’ gender identity in Brazil. The report deals with the evolution of legal regulation regarding sexual identity and its particularities.

    Professor Ana Paula de Barcellos discusses the coexistence of different realities related to constitutionalism and legal pluralism in an era of Globalization, taking into consideration that for now in Brazil a tension between constitutionalism and legal pluralism does not have the same extent as in other countries.

    The paper by Professor Anderson Schreiber analyses the data protection legal framework in Brazil, especially the provisions of a new Brazilian Personal Data Protection Law, with the objective to guarantee the right to privacy. Among other topics, there is also a discussion of the specific problems related to data protection on the Internet and the international dimension of data protection.

    Arthur Sodré Prado and Renato Giavina Bianchi discuss the legal framework concerning children’s rights in criminal law and the difficulty of guaranteeing the protective rights to juveniles under the age of 18 who have committed penal infractions in Brazil.

    The paper of Professor Daniel Bucar and Mario Viola is dedicated to analysing the current Brazilian framework regarding genetic data protection that are considered sensitive. In particular, the authors discuss the possible effects found when genetic testing is used to inform labour relations and also insurance contracts.

    The report of Diogo Campos Medina Maia deals with the Brazilian collective bargaining system: the author defines its initial concepts, analyses its regulation and, among other topics, explains existing collective bargaining instruments.

    Professor Gisela Sampaio da Cruz analyses schemes that can be used for the compensation of damages caused by healthcare taking into consideration that, in the Brazilian administrative system, an organized compensation scheme does not exist. Furthermore, the author traces the function of civil liability, evaluates the system of reparation of damages, as well as describes the Brazilian normative framework and presents proceedings that are alternative to lawsuits.

    The report of Professor Gustavo Tepedino deals with the theory of Commons that gained prominence both in doctrine and in court practice worldwide. Basing it on the Brazilian experience, whose essential feature nowadays is the search for the effectiveness of the fundamental rights provided for in the Constitution, the author analyses the goods that are essential to every human being and the available mechanisms that allow for access to them in Brazil.

    Professor Heloisa Helena Barboza examines Family Law in a multicultural context in Brazil. The author exposes the historical background characterized by the presence of multiple ways of life in different groups that were regulated by the same legal norms. Special attention is given to the analysis of the law governing family relationships between parents and children, between couples and also the recognition and the dissolution of such marital nature relationships and their effects.

    The report of Professor Humberto Dalla Bernardina de Pinho deals with the question of confidentiality of correspondence between client and attorney as a requirement of a fair trial. The paper examines cases where there have been State intrusions and shows the legal permissions and the limits of these intrusions, highlighting hard cases and specific solutions for them.

    Professor José Augusto Fontoura Costa examines personal data protection in trade agreements. The report deals with the analyses of WTO rules on data protection and the annexes and chapters on data protection of European agreements. A special attention is given to the electronic commerce provisions on data protection in regional and bilateral trade agreements.

    Professor José Roberto de Castro Neves and Patricia Klien Vega analyse the environmental litigation in Brazil and the available mechanism of the protection of collective and individual rights with regards to the ecologically balanced environment. In addition to demonstrating the laws governing environmental protection, the authors also expose opportunities and challenges to guarantee the effectiveness of climate change litigation.

    The report of Professor Marilda Rosado de Sá Ribeiro and Patrícia Guimarães deals with the concept of Corporate Social Responsibility (CSR), bringing this question into the Brazilian context. In this regard, they analyse the sources of CSR from a Comparative Law perspective and explain the liability guidelines, as well as the methods of dispute resolution, the applicable law, the system of recognition and enforcement of judgements.

    Professor Melina Girardi Fachin examines the concept and the role of comparative law in the context of different cultural traditions and analyzes paradigms and challenges of current legal education, presenting an empirical view of the Brazilian experience. Moreover, the pedagogy of the oppressed by the Brazilian educator Paulo Freire and the legislative adoption of the affirmative action system in higher public education in Brazil are discussed in further detail.

    The paper of Professor Milena Donato Oliva is dedicated to the study of consumer protection under the Brazilian normative framework. Beyond the definition of consumer, the author investigates the legal duty of the supplier to inform and obtain a qualified and not only a formal consent from the consumer. This way, the report takes into consideration the application of the Brazilian Consumer Protection Code to banking and insurance activities and explores consumer protection issues in the context of the e-commerce

    Professor Pablo Renteria brings a panoramic view of the public notary in Brazilian Real Estate Law. In the paper, different faces of this question are presented, such as mandatory checking procedures that must take place before finalizing an agreement. Among other important points, Renteria highlights the regulation of the system of real estate transfer evidence, the payment methods and the costs of legal assistance, the notary’s liability in the context of conveyancing and the perspectives in the development of conveyancing law in Brazil.

    The paper of Simone Lahorgue Nunes handles the Brazilian Law’s treatment of intellectual property when it is used as collateral for credit. In order to circumvent the lack of a specific statutory provision in Brazil she discusses a variety of applicable legal norms that regulate such questions. The author explains not only the categories of security rights, the structure of transactions and the priority rights granted to creditors, but also the legal and practical difficulties in obtaining security rights over IP-rights. Furthermore, Nunes exposes the enforcement of IP-related security interests that can arise upon default, outside or within insolvency.

    It is important to mention that the next two years will be significant for those who are interested in Comparative Law in Latin America. In 2021, a preparatory seminar to the next General Congress of IACL will be held in Rio de Janeiro and, in 2022, the 21th General Congress will take place in Assunción (Paraguay). These events represent an excellent opportunity for the development and diffusion of Comparative Law in Latin America. Another important event to mention is the Thematic Congress «Diversity and Plurality in Law» that will be held in Pretoria (South Africa) in October 2020.

    Chapter 1

    Crowdfunding in Brazilian law

    Aline de Miranda Valverde Terra

    ABSTRACT. This study sets out to analyze the discipline of the various modalities of crowdfunding used in Brazil. As below, the main difficulty comes from the fact that there are only two specific regulations: one edited in July 2017 which concerns investment-based crowdfunding, and another one edited in October 2017 which regulates donations from natural persons to politicians and political-parties through crowdfunding. That is why, as regards the other types of crowdfunding, it is necessary to search, the sparse legislation – especially in the Civil Code – for rules applicable to the contracts signed between investors, platforms and project developers, which has led to a series of controversies and practical problems.

    KEYWORDS. Contracts; Crowdfunding; Regulations.

    Crowdfunding no direito brasileiro

    RESUMO: Este estudo pretende analisar a disciplina das diversas modalidades de crowdfunding utilizadas no Brasil. Como se verá, a grande dificuldade enfrentada pelos agentes que desejam se valer dessa modalidade de financiamento é a ausência de regras claras e precisas que disciplinem a matéria, uma vez que há apenas duas regulamentações específicas sobre o tema: uma relativa ao investment-based crowdfunding, editada em julho de 2017, e outra concernente ao donation-based crowdfunding para financiamento de campanhas eleitorais, editada em outubro de 2017. Por essa razão, em relação às outras modalidades de crowdfunding, faz-se necessário buscar na legislação esparsa – sobretudo, no Código Civil – as regras aplicáveis aos contratos celebrados entre investidores, plataformas e desenvolvedores do projeto, o que tem gerado certa insegurança jurídica. Este artigo se propõe, com efeito, a identificar a disciplina incidente nas diversas modalidades de crowdfunding, esclarecendo os direitos e os deveres que tocam a cada um dos agentes envolvidos na operação.

    PALAVRAS-CHAVE: Contratos; Crowdfunding; Regulamentação

    SUMMARY. Introduction – 1. The juridical nature of contracts drawn up in the scope of crowdfunding – 2. Supervision of the crowdfunding activity – 3. Obligations of the parties –3.1. Duties of the platform (as intermediary) vis-à-vis users of the platform – 3.2. Duties of the project directors – 3.3. Duties of the contributor – 4. Rights of contributors – 5. The activity of crowdfunding platforms in Brazil – 6. Tax measures – 7. Litigation in relation to the crowdfunding activity – 8. Final remarks – References

    SUMÁRIO: Introdução – 1. Natureza jurídica dos contratos celebrados no âmbito do crowdfunding – 2. Supervisão da atividade de crowdfunding – 3. Obrigação das partes; 3.1. Deveres da plataforma (como intermediária) em relação aos usuários – 3.2. Deveres do diretor de projeto – 3.3. Deveres do apoiador – 4 Direitos do apoiador – 5. A atividade das plataformas de crowdfunding no Brasil – 6. Medidas fiscais – 7. Litígio relativo à atividade de crowdfunding – 8. Conclusão – Referências

    INTRODUCTION

    The use of crowdfunding has grown exponentially in Brazil.¹ Currently there are two regulations regarding the matter: CVM² Instruction 588 dated 13 July 2017,³ which addresses investment-based crowdfunding, and Law nº 13.488 dated 6 October 2017⁴ – that amended Law nº 9.504 dated 30 September 1997⁵ (Law of Elections) and was regulated by article 23 of TSE⁶ Resolution nº 23.553 dated 18 December 2017⁷ –, which regulates donations from individuals to political-party activities through crowdfunding. It explains why different practical difficulties have had to be confronted.

    The first such difficulty lies precisely in finding a single definition of crowdfunding that covers all its various modalities. The definition of investment-based crowdfunding is offered in article 2, item I, of CVM Instruction 588, in the following terms: obtaining resources by means of public offering of securities distributed exempt from registration by persons considered to be small-sized business companies in the terms of this Instruction and distributed exclusively by means of an electronic platform of participatory investment to a group of investors who provide financing within the limits set out in this Instruction. Article 23, paragraph 4, item IV, of Law nº 9.504 – with content readdressed by Law nº 13.488 –, in turn, allows donations of financial resources for electoral campaigns via institutions that promote collective financing techniques and services through websites, electronic applications, and other similar resources, which can be considered a legal definition of donation-based crowdfunding.

    The Draft Law 2.862/2015,⁸ in discussion in the National Congress, intends to regulate generically the functioning of the companies that organize collective investment and possess a portal on the internet, according to the modality of financing profit or non-profit projects. The Draft Law, however, does not define crowdfunding, but limits itself to defining the companies that organize collective investment and distinguishes those that operate in the modality of supporting profit-making enterprises (article 2)⁹ from those that prioritize social objectives (article 3).¹⁰

    As a matter of fact, given the absence of a generic definition in the legislation, specialized opinion formulates a concept on relatively homogeneous bases by identifying crowdfunding as collective financing intended to concretize projects of various characteristics (cultural, emergency, personal, environmental, commercial, and so on). The main divergence in doctrine is how relevant the means used to obtain resources is to configuring crowdfunding.

    In this sense, some authors claim that the essence of crowdfunding lies in the use of the internet to announce projects and collect amounts of capital.¹¹ Others, however, understand that the vehicle used to gather resources is of no relevance to defining crowdfunding.¹² That is why these authors perceive as types of crowdfunding both the building of the statue of Christ the Redeemer on Corcovado mountain – concluded in 1931 with funding obtained exclusively from donations made by the Brazilian population –¹³ and Hope for Children (Criança Esperança¹⁴) as well as Teleton¹⁵ – philanthropic projects circulated by televised campaigns for more than 30 years and developed through resources offered by the public. Bearing in mind that CVM Instruction 588 and Law nº 13.488 adopted the first notion, this would seem to be the prevalent orientation.

    Also called multitude financing, collaborative contribution or participatory investment,¹⁶ crowdfunding presents itself as an alternative to the traditional way to obtain resources by means of bank loans or direct investments from a restricted group of investors, by enabling simultaneous collection from innumerable unknown natural and/or corporate persons who each provide a small amount of the desired total,¹⁷ thereby ensuring the feasibility of the publicized project.

    The difficulties faced by the lack of specific regulations for all models of crowdfunding, as well as for generic regulations to define general rules that can be applied to all models, however, are not limited to the absence of a legal definition. Several other juridical questions have yet to be satisfactorily resolved in the Brazilian legal system, as shall be shown below.

    1. THE JURIDICAL NATURE OF CONTRACTS DRAWN UP IN THE SCOPE OF CROWDFUNDING

    The structure of crowdfunding is complex; there are three different juridical relations, one established between the author of the project and the investors, one between the author of the project and the online platforms through which the project circulates, and another between the investors and the corresponding platforms. The juridical nature of the contracts signed between the idealizer of the project and investors depends mainly on the model of crowdfunding that is adopted. Some such contracts are typical, disciplined by the Civil Code,¹⁸ while others are atypical, depending on the private autonomy of the parties.

    Various forms of crowdfunding are used in the Brazilian market, namely: donation-based crowdfunding, reward-based crowdfunding, pre-selling crowdfunding, lending-based crowdfunding and investment-based crowdfunding.¹⁹ These models, however, are not strict and final; the lack of legal regulation for the matter delimiting the juridical structure of the operations enables the private autonomy of the agents involved to create other arrangements in keeping with the interests of the developers, in order to implement the desired project.

    In the donation-based version of crowdfunding, the intention of the entrepreneur is in general to obtain resources to undertake philanthropic, cultural and sports projects without offering any counterpart to the supporters. A typical donation contract in Brazil has two elements in accordance with article 538 of the Civil Code:²⁰ one subjective – the animus donandi, whose content is liberality, that is to say, giving a patrimonial advantage without any compensation,²¹ the other objective – reducing the donor’s assets with the corresponding increasing of the recipient’s wealth.²² Although the donor receives no compensation, in most cases he shows some indirect interest in how the project works out – his favorite composer recording an album, or his favorite movie-maker producing a film – without this altering the donation nature of the contract.

    As supporters make donations to implement the proposed project, this donation configures a donation subject to a charge:²³ the donee (the idealizer of the project) is entrusted with using the funds received in the announced project; if he fails to do so, the donation may be revoked and the donated amount returned to the contributors (article 562 of the Civil Code),²⁴ even if the failure to complete the project occurs against his wishes,²⁵ therefore no loss and damage is due.²⁶ Note that the failure of the project does not mean not complying with the assumed assignment; in order to fulfill his responsibility, it suffices that the idealizer uses the funds in the proposed project, which may or may not meet with success. Finally, it should be emphasized that there is a civil relationship between the entrepreneur and the crowdfunding donors, who cannot be considered consumers.

    In Brazil, the electoral legislation allows donations to campaigns through crowdfunding, according to article 22-A, paragraph 3 of Law 9.504,²⁷ which has become a very important mechanism for candidates and political-parties to obtain funding due to the decision made by the Supreme Court which declared political financing by companies unconstitutional in 17 September 2015, which now means that only natural persons are permitted to make electoral donations.²⁸

    Reward-based crowdfunding is one of the most popular models used by Brazilian platforms of collective financing. It is used by the idealizer assuming the obligation, once the project has become real, to recompense the contributors with a whole array of benefits, normally with immaterial goods or goods of subjective value, such as offering an adhesive signed by a certain singer, including the contributor’s name in the credits of the project, or holding a dinner with some artist involved in the project. Most times the reward depends on the amount contributed to the project: the bigger the value, the better the return.

    Brazilian doctrine is controversial as regards the juridical nature of the relation established between supporter and idealizer of the project in this particular model of crowdfunding. Some authors claim that it is necessary to analyze the proportionality between the rewards offered and the contribution made by the supporter in order to qualify the contract signed:²⁹ if the reward consists only in limiting the advantage granted to the recipient, then we are dealing with a donation which entails an obligation in the same way as occurs with donation-based crowdfunding; if, however, the reward is so significant that it makes the contract onerous, then the donation subject to a charge is not appropriate. This is so because although there is no quantitative limit to the obligation in Brazilian law, this cannot represent a compensation to the donation made, under penalty of the donation contract becoming invalidated.³⁰ So in this case it is necessary to investigate whether the value of the compensation is equivalent (in terms of proportionality, not of absolute equality) to the amount offered by the supporter, a hypothesis that configures an onerous and reciprocal contract, which can be a buy-and-sell (Article 481ff. of the Civil Code),³¹ service-rendering (Article 593ff. of the Civil Code)³², or enterprise contract (Article 610ff. of the Civil Code),³³ depending on the retribution offered, or even an atypical contract. If, however, the value of the reward is less than the quantum invested, yet onerous enough to dismiss the liberality of the total contribution, then this is a case of an atypical contract, the cause of which is at one and the same time the onerous transferring of the part of the service rendered corresponding to the compensation received and the transferring of the value in excess free of charge. Thus, for the authors who share this understanding, in reward-based crowdfunding, the idealizer of the project can be accountable for fulfilling an obligation according to a donation contract or else honoring compensation established in an onerous and bilateral contract.³⁴

    In the pre-selling model of crowdfunding the supporter pays a certain amount and as compensation receives the product or service that results from the project, normally of tangible and measurable value. If the value of the product/service is proportional to the value of the contribution invested, this is a case of a contract for buying and selling some future thing. If the pre-sale is carried out using the all-or-nothing model, once the deadline of the campaign is reached, the values invested will be returned to the contributors if the necessary target is not reached to complete the project; this solution is in accordance with the provision expressed in article 483 of the Civil Code: if the future thing eventually does not exist, the contract will have no effect.³⁵ If, however, the keep-it-all model is adopted, once the deadline of the campaign is reached, the entrepreneur receives the whole quantity gathered, even though the target set in the campaign has not been achieved. In this case, as provided in the final part of the above-mentioned article 483, this is a case of an aleatory contract of the emptio spei type, whereby the investor assumes the risk with regard to the success of the project and the existence of the product/service, so that even it eventually does not come to exist, if this happened without any blame of the entrepreneur, the former will not be able to recuperate the value contributed, according to article 458 of the Civil Code.³⁶

    The relationship between the contributor and the idealizer of the project, both in the rewarded-based crowdfunding and the pre-selling model of crowdfunding, can be considered a consumer relation, to which the Consumer Defense Code (Law nº 8.078/1990)³⁷ is applied. This is due to the fact that Brazilian law adopts a very wide concpet of consumer, as being every natural or legal person who acquires or uses a product or service as an end user (Article 2 of Consumer Defense Code).

    In some countries, the peer-to-peer version of lending-based crowdfunding is used by entrepreneurs with a view to obtain financial loans without any intermediary financial institution; here the supporter lends a certain quantity to back the project for a certain time, at the end of which the author of the project returns the values contributed. In these exact terms, the model is not used in Brazil, because the activities carried out in these transactions are restricted to financial institutions and regulated by the Central Bank of Brazil.³⁸ The market, however, took care of adapting to the restrictions of national legislation, as did the platform Biva (https://biva.com.br/), a technology company set up in April 2015. This platform operates in partnership with a financial institution that originates and sustains all the credit and investment operations that it intermediates; all the rest of the business model, from acquiring investors and companies seeking loans to analyzing the credit of these companies, is carried out by Biva’s team of specialists.³⁹ The investments received via platforms are then transferred directly to an associated financial institution, which in turn transfers the value requested to the entrepreneur.⁴⁰ Upon making the investment, the investor acquires a fixed-income security called a Bank Deposit Receipt (RDB).

    Juridically speaking, the investor thus lends money to the financial institutions and obtains a Bank Deposit Receipt, a paper/title that embodies a promise of future payment of the value invested, plus the rate agreed at the moment of the transaction. In Brazil this loan seals a loan agreement, provided by the Civil Code in article 586.⁴¹ Since as a rule the investor lends the money for the financial institution to pass it on to the entrepreneur to be used on a certain and determined project, this configures the so-called loan of scope.⁴² The prevision of payment of remuneratory interest to the investor also qualifies the loan as onerous, in the terms of article 591 of the Civil Code.⁴³ Lastly, it should be noted that the relation between the investor and the associated financial institution is a consumer relation.

    Investment-based crowdfunding is also timidly developed in Brazil, mainly due to the fact that its regulation only took place in July 2017, through the above-mentioned CVM Instruction 588. Although this modality of crowdfunding was already in practice, given the absence of regulation, it was restricted to companies that met the conditions of the Simples regime, that is to say, companies that made up to R$ 3,6 million a year. After CVM Instruction 588,⁴⁴ they began to hold public offers⁴⁵ distributing securities through a shared-investment electronic platform for small-sized businesses, understood, in accordance with article 2º, paragraph III, as a business company established in Brazil and registered in a competent public agency, with a gross annual revenue of up to R$ 10.000.000 (ten million Brazilian Reais) verified in the exercise closed in the year prior to the offering and not registered in the CVM as a distributor of securities.

    The model has concentrated mainly on financing start-ups, in exchange for which the investor receives shareholder status in the company in which he has invested.⁴⁶ Up to the above-mentioned regulation, the market in Brazil showed a preference for using loan contracts convertible into equity, known as convertible notes.⁴⁷ Often, these notes provide for the investor to concede a loan to the start-up, which will be repaid at the criterion of the investor or else as agreed in the contract, by being converted into shares in the company, or else the value invested is returned plus interest. Rafael Younis Marques points out that given the characteristics of convertibles notes in Brazil, above all granting the investor exclusive partnership rights,⁴⁸ which can dislocate the center of decision-making control of the company, one can imagine the existence of a de facto company associating investors and partner-entrepreneurs of start-ups.⁴⁹ Note, however, that CVM Instruction 588 is not limited to the offering of securities representing debt that can be converted into shares, admitting generically the distribution of securities that can be issued by businesses. Besides this, it is clear that the investor does not have a consumer relation with the startup.

    Normally the resources transacted in all the models of crowdfunding analyzed are quantities of capital. Bearing in mind that we are dealing with investments made by online platforms, the most common form of contribution is the same as that is used in online purchases in general, in other words payment by credit card. Additionally, electoral legislation determines that financial and payment institutions cannot refuse electoral donations by debit or credit cards made by natural persons (article 23, paragraph 9). The stimulus of the legislator to donations by debit or credit card can be explained by the easy operation of possible refund to the donor if the candidate desists or does not register his candidacy.

    There are also platforms that admit paying by bank bill or bank transfer – strictly speaking, the latter is the rule in lending-based crowdfunding. More recently, certain platforms have begun to use safer payment services such as Paypal and Pagseguro. Whatever the form of payment, on account of the fact that the national currency (Real) is legal in Brazil,⁵⁰ payment cannot be made in foreign currency, except in cases expressly provided in article 2 of Decree-Law 857/69.⁵¹

    Despite the fact that there is no legal prohibition, no information has been received with regard to different forms of support through contributions. Be that as it may, it is important to underscore that creating different ways to contribute can alter the legal nature of a contract signed between an investor and the party who idealizes the project. In pre-selling crowdfunding, for example, if the investor offers his support to the entrepreneur in the form of service and in return receives the final product of the project, rather than a buy-and-sell contract, this will be an exchange contract, as defined in article 533 of the Civil Code.⁵²

    Having looked into the nature of the relation between supporters and authors of the enterprise, the analysis now turns to the relation established between supporters and crowdfunding platforms. Crowdfunding platforms are providers of content that render service enabling their users – project idealizers and supporters – to engage in transactions with one another. In fact, the obligation of the platform to the supporters consists in guaranteeing access to the site, the veracity of information and security of the transactions involved.⁵³ The service-rendering contract is defined in accordance with article 594ff. of the Civil Code,⁵⁴ and, furthermore, as a rule, this relation can be qualified as a consumer relation.⁵⁵

    Sometimes platforms also directly receive the values contributed by supporters and hold them in separate and dedicated accounts opened in the books of the partner financial institution, until such a time as the project reaches the deadline date stipulated to complete collection, at which time the values are transferred to the entrepreneurs.⁵⁶ In this case the crowdfunding platforms act as depositories of the contributions, in a relation regulated by the rules of a deposit contract, as provided in article 627ff. of the Civil Code.⁵⁷ This is a third-party deposit,⁵⁸ seeing as the platform will have to deliver the values to the project’s idealizer if the total amount needed is attained or – should the platform adopt the keep-it-all model –if the amount is not reached. With regard to the electoral financing, for exemple, the values are deposited into a bank account of the company that collects the donations at the Caixa Econômica Federal, Banco do Brasil or another financial institution with a commercial portfolio recognized by the Central Bank of Brazil, and transferred within appropriate time limitations by electronic bank transfer to the campaign account of the candidate or the political-party.

    Lastly, the relationship established between the creators of the project and the platform consists in intermediating between those who have projects in need of funds and people willing to finance them. This, then, is a brokerage contract, as in article 722 of the Civil Code.⁵⁹

    2. SUPERVISION OF THE CROWDFUNDING ACTIVITY

    In the absence of specific legislation, crowdfunding platforms usually require no authorization to exercise their activity, as stated in the single paragraph of article 170 of the Constitution of the Republic,⁶⁰ according to which everyone is entitled to free exercise of any economic activity that does not depend on authorization given by public organs, save in the cases provided in law. Nonetheless, depending on the model of crowdfunding adopted, authorization is exceptionally required.

    In this direction, as far as investment-based crowdfunding is concerned, article 12 of CVM Instruction 588 determines that intermediation of public offers of distribution of securities dispensed from registering in the terms of this Instruction is a private electronic platform activity for participatory investment registered in the CVM. This therefore means that the crowdfunding platform should obtain and maintain a register in the Securities Commission of Brazil as an electronic platform for participatory investment, which requires that the soliciting person be a corporate person regularly constituted in Brazil and registered in the National Register of Corporations (CNPJ) besides complying with the requirements listed in article 13 of the above-mentioned Instruction.

    One of several factors behind this impressive rigor with electronic platforms for participatory investment is the fact that they are responsible for overseeing small-sized businesses and for checking whether the money captured is really being destined for the project described in the offer. Incidentally, it bears emphasizing that the Instruction exempts both the afore-mentioned businesses – as stated in the article 2, item III, also mentioned above – and the public offers presented in the platforms – as described in article 3⁶¹ – from registering in the Securities Commission of Brazil.

    In the same way that occurs with investment-based crowdfunding, the companies that collect donations for political financing must proceed to a previous registration in the Electoral Court, observing the attendance, according to the law and the regulation issued by the Central Bank of Brazil, of the criteria to operate payment arrangements (Law 9.504, article 23, paragraph 4, IV, a combined with TSE Resolution 23.553, article 23, I). Such registration requires the filling out of electronic form available on the web page of the Superior Electoral Court on the internet, as well as the submission of the documents indicated in TSE Resolution 23.553, article 23, paragraph 1.

    In respect to the Brazilian model of lending-based crowdfunding, the platform acts as a bank correspondent, as in the terms of article 2 of CMN Resolution 3.954/ 2011 of the Central Bank of Brazil, in partnership with a financial institution.⁶² The constitution and functioning of the financial institution depend on authorization from the Central Bank of Brazil, but the same requirement is not demanded for the constitution of the platform. However, signing the correspondent contract between the platform and the financial institution depends on authorization from the Central Bank of Brazil in the terms of article 5 of Resolution 3.954.⁶³

    Brazil lacks a specific body to control the practice of crowdfunding in a general sense. Nevertheless, investment-based crowdfunding, as involves public offers, have to be submitted to the supervision of the Securities Commission of Brazil, whereas peer-to-peer lending crowdfunding, because it involves loans, is subject to overseeing carried out by the Central Bank of Brazil. In turn, companies that collect donations for political financing are subject to supervision carried out by the Electoral Court.

    Despite the fact that no specific provisions exist in criminal law applicable to crowdfunding, the existing rules aimed at combating money laundering (Law 9.613/1998)⁶⁴ and financing terrorism (Law 13.260/2016)⁶⁵ apply. In turn, CVM Instruction 588 determines in its article 13, paragraph 1, III, c, as a requisite to obtain and maintain registration in the Securities Commission of Brazil as an electronic platform for participatory investment, that the applicant prepare a code of conduct applicable to his partners, administrators and employees, on the rules, procedures and internal controls that enable identification, analysis and mitigation of the risks and practices of the crimes of money laundering or concealing assets, rights or values and financing terrorism.

    3. OBLIGATIONS OF THE PARTIES

    3.1. Duties of the platform (as intermediary) vis-à-vis users of the platform

    The Consumer’s Defense Code (Law 8.078/1990) generically imposes on all service providers – including crowdfunding platforms, as a rule – the same obligation to give extensive information to consumers as the platforms give to their users. Two articles are dedicated to the theme: article 6, item III, according to which the basic rights of the consumer are adequate, clear information concerning the different products and services, with correct specification of quantity, characteristics, composition, quality, taxes applied and prices, as well as the risks that they present; and article 31, which sets out that the offering and presentation of products or services must ensure correct, clear, precise and ostensive information in Portuguese on the characteristics, quality and quantity, composition, price, guarantee, validity and origin, among other data, such as the risks presented to the consumer’s health and safety.

    With regard to investment-based crowdfunding, besides expressly imposing on electronic platforms for participatory investment the obligation to provide information in accordance with articles 8 and 9⁶⁶ of CVM Instruction 588, article 19 further imposes the duty of acting cautiously and with utmost diligence, especially to guarantee that the information provided by the small-sized company is true, consistent, correct and sufficient, allowing investors to make a well-grounded decision about the offer (article 19, I, b); the contract or deed guarantees the investor the right to conversion, as manifested by the investor, of securities shared in the small-sized company until their expiry, in the hypothesis of an offer of securities representative of convertible debt (article 19, I, d); the contract or deed guarantees the investor the right to joint sale in the same terms and same price as offered to controllers of shares, instruments or quotas resulting from conversion of the securities offered according to this Instruction, in the hypothesis of a binding offer being formulated to the controllers to sell, directly or indirectly, the control of the small-sized company (article 19, I, f).

    The same article 19 also imposes on the platform that operates investment-based crowdfunding the following duties: to obtain from the investor, prior to confirmation of the investment, his signature acknowledging awareness of the risk involved (sub-item IV); to suspend distribution and immediately inform the CVM of any fact or irregularity that might justify such a measure (sub-item V); to keep an electronic forum of discussion for each offer of access restricted to recipient investors of the offer which enables them to resolve doubts and ask for additional information (sub-item VI); to maintain a service to attend to investors, clear up doubts and receive complaints, as well as communications sent by the CVM (sub-item XI); and to preserve secrecy concerning financial information and operations effected by its clients (sub-item XIII).

    The entities that raise collective electoral funding, in turn, must disclose in their electronic site, according to article 23 of TSE Resolution 23.553, a list with identification of the donors and their donated amounts, to be updated instantly with each new donation, as well as the administrative fees to be charged for the service.

    Functioning as intermediary, a platform may also be obliged – depending on the type of crowdfunding – to keep the values contributed by investors and emit a consignment receipt as proof of the transfer of funds. That is precisely what happens to entities that raise collective electoral funding, which must issue a receipt regarding each donation, in order to allow the identification of some information, as identification of the donor and the beneficiary of the donation; amount paid; date of donation; form of payment; and identification of the collecting institution issuing the receipt (TSE Resolution 23.553/2017, article 23, paragraph 2). On the other hand, as already pointed out in a previous footnote, this does not happen in the investment-based version, as the CVM Instruction 588 expressly prohibits the values transferred by investors from circulating through current accounts held in the name of the platform, partners, administrators and persons associated with the platform or companies controlled by the above-mentioned persons.

    Besides this, when the all-or-nothing version is adopted, once the campaign is over, if the necessary minimum number of contributions is not reached to develop the project, the platform must notify the investors about cancelling the project so that the resources collected can be returned or re-allocated, unless the model in question is the keep-it-all.⁶⁷

    The platform is not obliged to guarantee the holding of projects to which resources are contributed.⁶⁸ Nevertheless, this is an activity based on credibility and trust that the site offering the crowdfunding service transmits to its users, be they investors or entrepreneurs. Therefore, any irregularity in the project activated in respect to what was promised at the moment the resources were contributed reflects negatively on the reputation of the platform, since the investors trust that what was publicized will be carried out.

    3.2. Duties of the project directors

    The principal duty of the project directors, both in respect to the supporter and the platform, is to respect the commitment made to the project originally divulged, sending feedback to the investors about the progress being made.

    As regards investment-based crowdfunding, small-sized businesses that emit securities are equally under the obligation to inform the platform, within at most 5 (five) working days, of the closing of its activities; alteration to the objective of the business plan appearing in essential information of the offer; or any fact stipulated in a contractual clause referring to payment or early expiry, or that might affect the exercise of any other right by the holders of the securities offered (article 20, II, a, b, c).

    3.3. Duties of the contributor

    Supporters too have certain obligations. For instance, in peer-to-peer lending, their main obligation is to make the loaned resource available.

    In the sphere of donation crowdfunding, the donor of the resources must deposit the value in the bank account indicated by the platform. There is no required specific validity for the signing of such donation contracts by means of which the parties are submitted to the conditions as to the validity of any juridical transaction (article 104 of the Civil Code)⁶⁹ and the conditions specific to the donation contracts ruled by the Civil Code.⁷⁰ In Brazil, the donation contract is consensual, so the effective delivery of the good signifies that the contract has been executed.

    The electoral legislation establishes a temporal requisit for the political donations: the pre-candidates can raise funds from 15 May of the electoral year – two months before the party conventions, when the candidates are chosen –, until the election day (article 22-A, paragraph 3). Exceptionally, the posterior collection of funds is possible as long as they are intended to settle campaign expenses incurred before the election but remained unpaid (Article 35, paragraph 1, TSE Resolution nº 23.553).

    In respect to the values of the donations, TSE Resolution nº 23.553/2017 limits the political donations to the amount of R$1.064,10 (one thousand and sixty-four Brazilian Reais, and ten cents), as amounts above this limit must be transferred by electronic transference, directly from the donor’s bank account to the beneficiary’s bank account, without intermediation of a third party. This rule must be observed even in the case of successive donations made by the same donor on the same day (TSE Resolution nº 23.553, Article 22, paragraph 2). Besides this daily limitation, the sum of all political donations cannot exced 10% (ten percent) of the gross income earned by the donor in the year prior to the election (Article 23, paragraph 1, Law nº 9.504/1997).

    Although there is no maximum value for other kinds of donation generically imposed by law, some platforms, however, establish a limit, such as the site Vakinha, which only admits donations up to R$ 20,000 (twenty thousand Brazilian Reais).⁷¹ Nonetheless, it should be stressed that article 548 of the Civil Code proclaims as null and void donation of all goods without reserving part or sufficient income for subsistence of the donor, and in article 549, as regards the part of donation in excess of what the donor, in a moment of liberality, could dispose of in his will.

    However it may be, the donor must include donations over R$ 1,000 (one thousand Brazilian Reais) in his annual income-tax declaration, even though he is exempt from paying taxes, under penalty of a fine.

    On the matter of pre-selling crowdfunding, the requisites for validity of contracts are those generically listed in above-mentioned article 104. The supporter is obliged to pay the value adjusted for buying the future good or service resulting from the project, but the buyer is not limited by law to a maximum value of purchase.

    With regard to investment-based crowdfunding, no specific duties are imposed on the supporter, besides transferring the resources or signing the investment contract in confirmation of the commitment to take part in the offer (CVM Instruction 588, article 3, paragraph 2). In the terms of article 4 of this Instruction, the total amount invested in securities offered exempt from registration is limited to R$ 10,000 (ten thousand Brazilian Reais) per year, except as provided in the same Instruction. It bears noting that the same Instruction allows setting up so-called participatory-investment syndicates, which are defined as groups of investors connected to a leading investor (supporter investors) and meeting for the purpose of making investments in small-sized companies, with the optional constitution of an investment vehicle to take part in public offers of distribution of securities exempt from registering in the terms of this Instruction (article 2, V). The participatory-investment syndicates offer a great advantage to the investors, allowing block trading. The participation of the leading investor – who has to comply with the conditions of article 36 – is designed to reduce the informational asymmetry between entrepreneur and investor (article 35). The leading investor plays the role of interlocutor between the small-sized businesses and the participatory-investment syndicate, always in a manner aligned with the interest of the syndicate’s investors. He must present his personal investment thesis stating his justifications for choosing the small-sized company for the purpose of helping investors in the decision-making process of investing (article 35, paragraph 1). It needs to be emphasised that the participatory-investment syndicates are not a participating fund, as the leading investor does not have discretion in the representation and decision-making with reagrd to the investments

    4. RIGHTS OF CONTRIBUTORS

    The rights of the supporter depend in some measure on the type of crowdfunding adopted. Nonetheless, whenever he qualifies as a consumer, he is entitled to all the rights provided by the Consumer Defense Code.

    As said earlier, the supporter has the right to be informed by the platform about the project to be financed. Mistakes and omissions in the information given can spoil the supporter’s intention and lead him to annul the business he has entered. The two consentment defects that often happen in these cases are mistake⁷² and fraud.⁷³

    When the project is not carried through, the supporter has the right to reimbursement of the value invested. In investment-based crowdfunding the platform must take the necessary steps for transferring the final amount invested in at most 5 (five) working days after the date on which the offer is closed, for investors, in the hypothesis of the final value invested being lower than the minimum targeted value for capture, as set out in article 5, V, b – or else making the amount available for re-investment. If this is not the hypothesis, not returning the quantity contributed defines civil – and in some cases penal – responsibility of the idealizer of the project or even of the platform. In political donation crowdfunding, if the candidacy is not registered, the collecting entity must reimburse the values donated according to the established conditions with the pre-candidate (Law nº 9.504/1997, article 22-A, patagraph 4 and TSE Resolution nº 23.553/2017, article 23, paragraph 5).

    It is interesting to note that in the field of investment-based crowdfunding there is a specific provision on the possibility of the investor desisting from the investment without incurring in any fines or penalties during the desistance period of at least 7 (seven) days counting from confirmation of the investment (CVM Instruction 588, article 3, III).

    Notwithstanding the non-existence of specific mechanisms against fraudulent practices, platforms (in their role as business intermediaries) are obliged to promote previous thorough analysis of the data of supporters and entrepreneurs, as well as the risks entailed in the projects, in accordance with article 723 and its single paragraph of the Civil Code,⁷⁴ besides monitoring the campaigns and periodically accompanying the projects until they are concluded.

    In the hypothesis of the crowdfunding model adopted being submitted to the rules and overseeing of the Central Bank of Brazil, specific measures may be adopted by the Bank to discourage fraud, together with the authority to punish any damaging and fraudulent practices.

    In respect to investment-based crowdfunding, article 6 of CVM Instruction 588 gives to the Superintendence of Registration of Securities (SRE) the power to suspend or cancel at any time the offer of distribution made in different conditions from those contained in the Instruction and other rules edited by the Securities Commission of Brazil, or held to be illegal or fraudulent. Furthermore, article 59 of CVM Instruction 400/2003 defines certain practices as serious infractions, which the Securities Commission of Brazil is responsible for supervising.

    5. THE ACTIVITY OF CROWDFUNDING PLATFORMS IN BRAZIL

    Another aspect to add to those already mentioned that requires specific regulation is precisely the percentage of the collected funds to be transferred abroad. The solution in this case is to take into account the current rules in the National Financial System that protect the domestic market.

    The large majority of the platforms in Brazil have available and easily accessible terms of use. This is not only an imposition of the Consumer Defense Code, which requires, as pointed out above, that platforms lend all the necessary information to consumers using clear and readily understandable terms,⁷⁵ but also an imposition of the principle of good faith, ruled in article 422 of Civil Code, which sets that the contracting parties are bound to observe the principles of probity and good faith, both in entering into the contract and in its performance. As a rule, in addition to explaining the rights and duties of each party, the way in which the supporter can make his contribution, the policy on privacy, and the commitments of the campaign creators, the terms of use contain clauses with regard to choice of forum and choice of law.

    There is a professional association for crowdfunding platforms called the Brazilian Association of Equity Crowdfunding. Founded in August of 2014, it established its own professional code of ethics, available at http://equity.org.br/associacao.

    6. TAX MEASURES

    The incidence of taxes in crowdfunding operations depends on the modality and finality of the contribution. In the case of donation crowdfunding, the entrepreneur-recipient must pay the state Causa Mortis Transmission and Donation Tax (ITCMD), whose generating factor, for the purposes of this study, is the donation of any goods or rights, in accordance with article 155, I and paragraph 1 of the Constitution of the Republic, and arts 35 and 42 of the National Tributary Code. The same tax is levied on reward

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