The agreed flexibility of the concepts used in the legislation on just cause and serious misconduct and the prestige of preserving the company to the detriment of isolated attitudes that could harm the continuity of the business.
The exercise of economic activities, whether commercial or service provision, has always been practiced by individuals, accompanied by other people or not. However, over time, the combination of more than one natural person to carry out an economic activity acquired complexity and scope, requiring the creation of new fictitious people who were capable of carrying out those economic activities on their own, thus creating the legal entities and, among them, the companies[1].
The relationships of these legal, business and corporate entities are governed in Brazilian law by Book II of the Civil Code – Company Law, which provides, in particular in Title II, on the rules of formation, administration, resolution and dissolution of companies, whether business or civil (non-business), being of importance for the present work the articles 1.030 and 1.085, in addition to the others brought in Section V, about the Resolution of the Company in Relation to a Partner.
The aforementioned Section V, in particular article 1.030, provides for the partial dissolution of the company, that is, when one of the partners, on their own initiative or of the others, is removed from the company, in cases of death, exercise of the right of withdrawal or exclusion for committing serious misconduct in fulfilling their obligations. In addition, article 1.085 also provides for the possibility of excluding a partner who is jeopardizing the continuity of the company, due to acts of undeniable seriousness.
However, from the simple analysis of the cited articles, it is possible to verify that the concepts used in the legislation are indeterminate and flexible, and there is nothing in the law that establishes what should be understood as serious misconduct and acts of undeniable seriousness provided for in the legal text, leaving the doctrine, social deliberation and jurisprudence to delimit the attitudes capable of giving the other partners the right to exclude the one who is acting in a way that jeopardizes the interests of the company.
Considering both article 1.030 and article 1.085 of the Civil Code provide for the possibility of excluding a partner, it is important to bring the main difference between the two hypotheses. From reading article 1.030, it provides that “the partner can be excluded judicially, at the initiative of the majority of the other partners”, while article 1.085 provides that the majority of the partners, by amending the articles of association, may exclude the partner that is jeopardizing the continuity of the company.
At this point, professors Ivo Bari and Laura Freitas emphasize that “neither art. 1.030 or art. 1.085 establish as a requirement for the exclusion of the partner the verification of damage to the company”[2], that is, it is enough for the partner to jeopardize the continuity of the company so that the others can seek their exclusion.
This further fluid requirement is precisely necessary to avoid that the excluded partner can be excluded only after the damage has been characterized, thus accurately seeking to prevent the occurrence of the damage. However, if the mere threat of law is sufficient, it is important that the doctrine set parameters, that the partners proceed with reason and that the jurisprudence analyzes the concrete cases so that there are no injustices.
It is important to bring an important lesson from Luis Felipe Spinelli who, in his doctorate thesis, stated that, if exclusion were allowed without motivation, it would be opening the way for the abuse of the power of control, in addition to fighting the right to preserve the ‘partnership’ (property right of social participation) and would remove the indispensable protection of minority partners, bringing insecurity to the system[3].
In the case of indeterminate concepts, as already mentioned, it will be up to the analysis, “in the light of the specific reality of the company”[4], on the acts understood as sufficient to give rise to the exclusion of the partner, such as acts contrary to their duties and the provisions of the articles of association, to be guided by their own interests in conflict with those of the company, in addition to using the name and assets of the company for their own benefit.
Paulo Bardella summed it up well when he brought the legislator’s right to leave the concepts open, insofar as the intention is precisely to honor the principle of preservation of the company to the detriment of isolated attitudes of a partner that could harm the continuity of the business; if not, let’s see the excerpt below:
More important than describing possible “serious faults” is to understand the intention of the legislator, who seeks to preserve the company to the detriment of the partner, who should be excluded as an extreme measure to guarantee the continuity of the company, preserving its social mission.[5]
Since the concepts of serious misconduct and acts of undeniable seriousness are open and indeterminate, the legislator brought the need to prove this seriousness, either to judicially exclude the partner based on article 1.030, or to demonstrate the regularity of the extrajudicial exclusion carried out with support in article 1.085 of the Civil Code.
As for the first hypothesis of judicial exclusion, it is important to mention the provisions brought by the Civil Procedure Code in Title III on Special Procedures, notably Chapter V which deals with the Partial Dissolution Action of the Company, and the fact that the Superior Court of Justice has already clearly defined it when establishing that the exclusion of a partner from the company is an extreme measure and needs to be well demonstrated in court (AgInt in AREsp 989.990/RJ).
With regard to extrajudicial exclusion, in order for it to be considered regular, it is important that all the requirements set out in article 1.085 are followed, namely, the majority of the partners, representing more than half of the share capital, acts of undeniable seriousness and that jeopardize the continuity of the company, in addition to the previous provision in the articles of association.
In view of this, the legislator’s choice to leave the concepts of just cause, serious misconduct and acts of undeniable seriousness as undetermined was, in fact, the most correct insofar as it allows the performance of analyzes that take into account the particularities of each company without, however, failing to demand the fundamental proof of its occurrence.
[1] Art. 44. The following are legal entities governed by private law:
[…]
II – the companies;
[2]FERREIRA, Ivo Bari and CEITLIN, Laura Freitas. A Justa Causa na Exclusão de Sócios à Luz do Superior Tribunal de Justiça. Revista de Direito das Sociedades e dos Valores Mobiliários Vol. 13. São Paulo: Almedina, 2021. F. 51
[3]SPINELLI, Luis Felipe. A Exclusão de Sócio por Falta Grave na Sociedade Limitada: Fundamentos, Pressupostos e Consequências. 2014. Thesis (Doctorate in Law) – University of São Paulo Law School. Available at <https://www.teses.usp.br/teses/disponiveis/2/2132/tde-21082017-141154/publico/Luis_Felipe_Spinelli_A_exclusao_de_socio_por_falta_grave_na_sociedade_limitada_INTEGRAL.pdf. Accessed on 12/15/2021> . F. 64
[4]ADAMEK. Anotações sobre a exclusão de sócios por falta grave no regime do Código Civil, cit. p. 192 apud SPINELLI, Luis Felipe. op cit.
[5] CAPARELLI, Paulo Bardella. exclusão do sócio por falta grave na sociedade limitada através de simples alteração do contrato social. Available at < https://www.migalhas.com.br/depeso/149439/a-exclusao-do-socio-por-falta-grave-na-sociedade-limitada-atraves-de-simples-alteracao-do-contrato-social>. Accessed on 12/15/2021.
Available at: https://www.migalhas.com.br/depeso/359707/exclusao-de-socio-e-os-conceitos-de-justa-causa-e-falta-grave
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
