1 year after law 13.792/2019: what has changed?

When the measure was approved last year, the changes generated diverse opinions from jurists and lawyers specialized in the area. But what has actually changed?

It has been more than a year since the enactment of law 13.792/2019 that amended the articles of the Civil Code referring to two topics of corporate law:

Change of quorum in limited companies; and

Amendment of the rule of exclusion of a partner for serious misconduct in a limited company

According to the Explanatory Memorandum of the legislative process of the highlighted law, the objective was to simplify the procedures concerning limited companies, which are the type of corporate most used in Brazil.[1]

As an example, in the Junta Comercial do Estado do Rio de Janeiro – JUCERJA, from January to August 2019, 12,307 sociedades limitadas (LTDA), 11,413 empresas individuais de responsabilidade limitada (EIRELI) were incorporated against only 191 sociedades anônimas (sa).

Having overcome such introductory questions, we turn to the analysis of the amendments separately:

Amendment of the quorum for deliberation in limited liability companies

§ 1 of Article 1.063 of the Civil Code provided for a quorum of 2/3 (two thirds) of the share capital to effect the dismissal of the partner who was appointed administrator in the articles of incorporation. This quorum, which represented the qualified majority, was different from the standard rule of dismissal of directors, which establishes the need for votes holding more than 50% (fifty percent) of the share capital.

In the new legal framework presented, the need for the aforementioned quorum (2/3) previously required in the cases of limited companies was removed. Under the new law, to remove a partner appointed administrator in the social contract itself, only the vote of the majority of the share capital is required

See the comparative table:

Change in the procedure for the exclusion of a partner for serious misconduct in a limited company

The only § of Article 1.085 of the Civil Code that deals with the procedure of extrajudicial exclusion of the partner accused of committing serious misconduct, also underwent changes, removing the exception previously in force with respect to limited companies that have only two partners.

Now, the new law establishes the need to hold a meeting or assembly of partners to determine the exclusion of a partner in a society that has only two partners (article 1.085, sole§, of the Civil Code).

Apparently the change seems harmless, however, it generates important legal consequences for companies composed of two partners. According to recent data from Fundação Getúlio Vargas (FGV), these correspond to 85.70% of the total Limited Companies in Brazil.[2]

The intention of the legislator was to facilitate the procedure by exempting companies composed of two partners from formal and expensive acts – removing bureaucracy–, allowing the majority partner to exclude the minority from the board, by simply changing the social contact and presenting the other requirements that article 1.085 lists.

See the comparative table:

From our point of view, it is still too early to say the effective application of the Institute. Although the law values the principle of speed, it is risky from the perspective of the minority partner, who now has no opportunity to challenge the exclusion decision in the Assembly, leaving its defense only by judicial means.

Rafael De Sordi Barbosa Martins.

Attorney at TM Associates. Postgraduate in Business Law at FGV-LAW.

Leonardo Theon de Morais.

Founding partner at TM Associados. Master in political and Economic Law from Universidade Presbiteriana Mackenzie.

[2] Radiografia das Sociedades Limitadas, FGV: https://direitosp.fgv.br/sites/direitosp.fgv.br/files/arquivos/anexos/radiografia_das_ltdas_v5.pdf