Special Appeal No. 1.839.078/SP judged as of March 9, 2021 addressed, originally, an action for annulment of a notice of meeting whose aim was to deliberate on the exclusion of an associate, taking into account that such associate had already exercised its right of withdrawal without cause.
In the first instance, the claim was held valid, taking into account that the notice of meeting was submitted after the withdrawal request, to which the other associates could not oppose. Notwithstanding, upon lodging the appeal, the Court of Justice of São Paulo understood that the associate could not be withdrawn without cause as the limited liability company opted for the supplementary rules related to limited liability companies, which have no provision on the right of withdrawal without cause.
The Sentence was amended by the Superior Court of Justice, which held valid the possibility of voluntary withdrawal without cause, even if the articles of incorporation had opted for the supplementary rules of Law No. 6.404/76, being applied to the case article 1.029 of the Civil Code and the constitutional right pursuant to article 5, XX of the Federal Constitution, which ensures the right of no longer being an associate.
Regarding the supplementary rules, the Civil Code sets out, in article 1.053[1], the provisions for limited liability companies through rules for non-profit company in cases of omission, in addition to the possibility of applying supplementary provisions through rules for joint-stock companies, if in the interest of the associates.
The jurisprudence on the matter, until delivery of the aforementioned Sentence, followed the understanding that, if the associates could opt for the supplementary rules for joint-stock companies and, if they opted so, such rules would apply to the company, and there would be nothing left to talk about the application of rules for non-profit companies in cases of omission[2].
Notwithstanding, Reporting Minister Paulo de Tarso Sanseverino, accompanied by the other members of the Third Panel of the Superior Court of Justice, divided the rules into subsidiary rules for non-profit companies and supplementary rules for joint-stock companies[3].
The Ministers also added that, article 1.089 of the Civil Code also[4] sets out that, even if joint-stock companies are governed by special law, in cases of omissions, provisions established in the Code be applied to them.
Hence, it was decided to separate semantically article 1.053 main section, which addresses subsidiary provisions through rules for non-profit companies, from its sole paragraph, which addresses the supplementary (complementary) provisions and type of company, through rules for joint-stock companies.
The case submitted to the Superior Court of Justice – STJ – addressed the possibility of the associate withdrawing without cause from a limited liability company, which, in its articles of incorporation, stated that rules related to joint-stock companies are applied, which have no such provision.
The analysis conducted by the Reporting Minister was in the sense that, as already mentioned, by applying provisions under the rules for non-profit companies to limited liability companies, and article 1.029[5] of the Civil Code that establishes that the associate may withdraw from the company for undetermined time by simply notifying the other associates, this possibility is also applicable to companies that opt for supplementary rules for joint-stock companies.
Such understanding was backed by two other principles, the first one is the fact that the Federal Constitution expressly guarantees, in its article 5, XX[6] the right of not being compelled to remain associate, if desired so, and the second one is based on the differentiation between limited liability companies and joint-stock companies.
This differentiation lies, primarily, in the fact that the former ones consider companies of natural persons, where affectio societatis (willingness to constitute and join a company) is a required component, whereas the latter ones are considered capital companies, where share is not based on persons, but in the company’s share capital[7].
Hence, with the sentence of Special Appeal No. 1.839.078/SP, the Superior Court of Justice, by understanding that voluntary withdrawal without cause is possible even if supplementary rules of the Joint-Stock Company Law are provided for, gave an answer to a question that had been a matter of discussion for a long time in legal debates, whose understanding was grounded on article 1.029 of the Civil Code and on the constitutional right of not remaining an associate, pursuant to article 5, XX of the Federal Constitution.
[1] Art. 1.053. Limited liability companies are governed, in omissions of this Chapter, by the rules for non-profit companies.
Single Paragraph. The articles of incorporation may set out supplementary provisions for limited liability companies through the rules for joint-stock companies.
[2] Under such terms, art. 1.053, of the Civil Code, determined that limited liability companies are governed, in omissions of rules for limited liability companies, by the rules for non-profit companies. Such supplementary rules shall be applied, unless the articles of incorporation set out supplementary provisions for limited liability companies through the rules for joint-stock companies, Law No. 6.404/76, and provided that the rules are in consonance with the contractual regime of the limited liability company in case of legislative omission. (SACRAMONE, Marcelo B. Manual de Direito Empresarial. São Paulo: Editora Saraiva, 2022. 9786553622418. Available on: https://app.minhabiblioteca.com.br/#/books/9786553622418/. Access on: April 25 2022. Sheet 86.)
[3] Indeed, art. 1.053 of the Civil Code, whereas establishes that limited liability companies shall be governed subsidiarily through rules for non-profit companies, expressly authorizes, under its sole paragraph, that the articles of incorporation provide supplementary provisions through rules for joint-stock companies. (BRAZIL. Superior Court of Justice. Special Appeals No. 1.839.078/SP (2017/0251800-6). Reporting Minister: Paulo de Tarso Sanseverino – Third Panel. Brasília, March 9, 2021. Available on https://processo.stj.jus.br/processo/revista/documento/mediado/?componente=ITA&sequencial=2030014&num_registro=201702518006&data=20210326&formato=PDF. Accessed on April 25, 2022).
[4] Art. 1.089. Joint-stock companies are governed by this special law, applying to them, in cases of omissions, provisions under this Code.
[5] Art. 1.029. In addition to cases provided for in law or agreement, any associate may withdraw from the company; if by undetermined time, through notice to all other associates, within sixty days in advance; if by determined time, by judicially evidencing the withdrawal without cause.
[6] Art. 5 All are equal before the law, without distinction of any kind, assuring Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property, as follows: […]
XX – no one can be compelled to become or remain associate;
[7] Companies where the personal factor is crucial for corporate purposes are personal: disability, insolvency or death of an associate may lead to dissolution of the company. In capital companies, surety of third parties and disposal of shares are grounded solely on the share capital. (NEGRÃO, Ricardo. Manual de Direito Empresarial. São Paulo: Editora Saraiva, 2019. 9788553616190. Available on: https://app.minhabiblioteca.com.br/#/books/9788553616190/. Access on: April 25, 2022. Sheet 35).
Available at: https://www.conjur.com.br/2022-jul-22/fernanda-negro-oliveira-retirada-imotivada-sociedade-limitadas
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
