Review 21.05 from RafaeldeSordi1

The Association of lawyers (AASP) has just launched the digital platform of the Mediation Center. It is a tool aimed at professionals in the area and parts of all states in Brazil. The request for mediation should always be made by a lawyer representing your client, as AASP understands that your presence is essential throughout the procedure.

The launch ceremony, held during the webinar “mediation in digital platform”, was attended by the president of the Court of Justice of São Paulo, judge Geraldo Francisco Pinheiro Franco, AASP leaders and authorities on the subject, and was accompanied by 450 participants.

The president of the AASP, Renato Cury, who led the event, when speaking about the launch of the initiative recalled that the AASP created, in 2015, its Mediation Center and the online platform is another step for lawyers to understand the importance of mediation. “We need to leave the culture of litigation and the idea that all issues should be taken to the Judiciary. We know that we must increasingly implement and stimulate the culture of alternative means of conflict. The participation of the president of the Court of Justice of São Paulo in this event shows the excellence of the AASP initiative. We have to spread the practice of mediation more and more,” he said.

Cury also warned: “at the moment we are going through, the pandemic, we are afraid that the numerous demands arising from this period will all land in the Judiciary, causing a collapse in the system and in the judicial provision, so it is important to use alternative methods of conflict resolution.”

It is important to remember that mediation aims to recover the dialogue between the parties, using a third party, the mediator, who helps to flow the conversation between those involved; in the end they decide themselves and, together, reach a consensus.

The digital platform of the AASP Mediation Center is designed so that everything is done in a simple, agile way, in adequate but reduced deadlines, always with the participation of lawyers and the intervention of the mediator, in remote sessions. The tool maintains the criterion of personality and allows interaction between all participants.

She manages the contact between the parties and them with the mediators. It does document management. It allows joint meetings to be held, with the participation of all those involved, and also private meetings. It supports the preparation of collaborative documents online: registration of a possible future composition, of a pre-adjustment, of a pre-contract and even of the final document.

In order to speed up the procedures, the AASP appoints the mediator. However, the parties may object to the appointed mediator and by mutual agreement may request a mediator whom they deem to be most suitable for the case. The environment is completely confidential, ensuring that transactions will be restricted to the platform.

If the parties wish to hold face-to-face meetings, AASP provides appropriate facilities at its headquarters in São Paulo.

Differentials

• Exemption from registration fee and monthly administration fee:
• Associated AASP in causes up to R$ 30,000.00
• Not associated with AASP in causes up to R$ 5,000.00
• Highly qualified mediators
• Speed
• Integrated video conferencing
• Chat for quick messages during the procedure
• Upload documents
• Digital signature on the platform
• Integration with payment methods
• Saving time and money

Check it out! http://www.aasp.org.br

Commerce stopped, shopping malls closed, new opportunities disappeared and many people without jobs. This is the reality of many Brazilians with the disaster caused by the covid-19 pandemic.

The year 2020 has arrived with a certain optimism for us Brazilians. With the measures adopted by the Federal Government at the end of 2019, which would take place the following year, Brazilians had great hope for the country’s economic development.

It seems that now… in the midst of the pandemic, this “shock of optimism” was buried by the thoughts of several Brazilians, who now – more than ever – think about just surviving and keeping their accounts up to date as a result of the disaster generated by COVID-19.

At this point, many people ask, Is it possible for me to revise my rental agreement? My contract with suppliers? My fee agreement? My service contract?

Dear readers, This question imposes the analysis of several requirements in the light of the legal system and recent decisions of the Brazilian courts on the subject. I tell you that there is no formula, a recipe to be followed or a strategy that applies to all cases. This question must be examined on a case-by-case basis.

Under the prism of contract law, the full point of the discussion and questioning raised by several Brazilians concerns whether the pandemic will be classified and interpreted by the courts for the purposes of exclusion of liability, review or resilience of contracts. It is still too early to make this clear, but as will be demonstrated throughout this article, some decisions have already been made in this regard.

For a better debate, before entering the decisions themselves, it is necessary to reveal that there are some theories of Civil law that can support the applicant in the request for contractual review.

Finally, is it possible to justify the request for contractual review because of COVID-19?

The direct contemplates, in this very exceptional situation, the rebalancing of the economic-financial area of the contract by the following paths:

Fortuitous event or force majeure:

The first theory that would justify the request for contractual review because of the current pandemic would be whether COVID-19 is a hypothesis of fortuitous event or force majeure[1].

Article 393 of the Civil Code provides that “the debtor is not liable for damages resulting from acts of God or force majeure, if expressly not held responsible for them. Sole paragraph. The fortuitous event or force majeure takes place in the necessary fact, the effects of which were not possible to avoid or prevent”.

From the interpretation of such article, it is understood by the conjunction of three crucial elements for the removal of liability for the occurrence of a fortuitous event or force majeure: (i) necessary fact, that is, a fact that necessarily prevents or impairs the execution of the contract; (ii) effects impossible to be avoided or prevented; and (iii) there is no express contractual provision for the assumption of damages by any of the parties in these cases.

As the jurist Arnoldo Wald asserts about fortuitous events and force majeure, see:

The Civil Code conceptualizes the fortuitous event or force majeure as a ‘necessary fact’ whose effects were not possible to avoid or prevent’ (the term necessary means inevitable). Such a definition covers both natural facts (fire, flood), and the facts of third parties or Public Power (war, act of government, provided that they are characterized by inevitability and irresistibility). In Brazilian law, the fortuitous event or force majeure requires for its proof, which must be made by the person claiming it, the existence of two elements: an objective-the inevitability of the event-and the other subjective – the absence of guilt” (our emphasis) [2]

In our view, the coronavirus can be framed in a situation that characterizes a fortuitous event or force majeure, as long as there is a link, an inseparable link or causal nexus in the cause-and-effect relationship between the pandemic and the impossibility of executing the contractual object. From this premise, the parties may claim the occurrence of fortuitous events or force majeure as excluding their responsibilities. Remember: there must be a real and proven obstacle that justifies non-compliance with contractual clauses and such an event cannot be a pretext for opportunistic practices.

Theory of unpredictability

Another theory that may be presented for the discussion of the need to revise contracts due to COVID-19 is the so-called “Theory of unpredictability”, provided for in Article 317 of the Civil Code, in verbis: “when, for unpredictable reasons, there is a manifest disproportion between the value of the provision due and that of the time of its execution, the judge may correct it, at the request of the party, in such a way as to ensure, as far as possible, the real value of the provision”.

The theory of unpredictability [3] is understood to be implicit in contracts, a clause that releases the contractor to continue executing an unbalanced contract.

According to this dilemma, unpredictable, abnormal facts, beyond the control of the contractors, which make the fulfillment of the contract ruinous for one of the parties, create a situation that cannot be supported solely by the injured contractor and impose immediate review of the adjustment.

Therefore, the Economic-Financial Review of the contract is justified whenever a supervening, extraordinary and unpredictable circumstance compromises the balance of the contract, thus having to occur the recomposition of the agreed interests, to adapt them to the new reality.

The current pandemic fits into the core of this concept, as it will have repercussions on the fateful reality of the contracts in force, breaking their economic-financial balance. An easy-to-understand example is the issue of shopping malls. Most of them are closed and how will the tenants be able to afford the very high rent and other contractual clauses without billing and with the doors closed?

Other examples (I) loss of economies of Scale; (ii) exceptional exchange rate rise; (iii) increase in inputs and outputs; (iv) increase in transportation and logistics costs; (v) more expensive insurance, (vi) late payment (vii) new indirect costs, among other contractual losses.

As previously warned, the application will only succeed if it is properly justified technically, financially and legally.

How is the Judiciary behaving regarding contractual review these days?

Events, buffet and children’s parties Company:

The 2nd Civil Court of Santos granted early guardianship, allowing the reduction, for an initial period of 90 days, of 40% in the amount of rents paid by a company in the buffet and children’s parties business, which totaled R$32 thousand. Due to the current crisis triggered by Covid-19 and the consequent closure of commercial establishments, all planned events have been canceled. According to judge Claudio Teixeira Villar, the pandemic of the new coronavirus and the state conducts resulting from it conform to what is drawn in the theory of unpredictability, authorizing the revision of contracts or a temporary modulation aimed at their continuity. “This is an external event, fortuitous and force majeure, modifying the reality foreseen at the beginning of the contracting and making its object excessively burdensome,” he said.

Restaurants

Judge Fernando Henrique de Oliveira Biolcati, of the 22nd Civil Court of São Paulo, granted an injunction to reduce the amount of rent paid by a restaurant due to the covid-19 epidemic in Brazil, which resulted in the reduction of the establishment’s activities and income. According to the decision, the restaurant will pay 30% of the original rental amount for the duration of the health crisis.

Beauty salons

Law judge Camilla Prado, of the 41st Civil Court of RJ, judged that the beauty salon should reduce its rent by 50%. [4]

Mall lease agreement

Judge Vivian Carla Josefovicz, acting in the 4th Civil Court of the district of Blumenau, partially granted the request for urgent guardianship made by a restaurant and, in addition to determining the reduction of rent to half the monthly minimum, suspended the payment of the promotion and advertising fund and prevented the insertion of restrictions before the credit protection agencies in a lease agreement with a shopping mall in Blumenau. [5]

Educational Law

Judge Flávio César Barbalho, of the 3rd Civil Court of the Mossoró District, granted an injunction to determine that the Potiguar University (UnP) suspend the payment of tuition fees due by a student, for a period of six months, as well as refrain from cutting the university scholarship of 50%, enjoyed by the author of the request, under penalty of blocking in the amount of R$ 10 thousand, based on Article 139, IV, of the Code of Civil Procedure.[6]

Alimony

Due to the Covid-19 pandemic, Judge Fernando Henrique Pinto, of the 2nd family and succession Court of the Jacareí Forum, set for the months of March, April, May and June 2020 the amount of maintenance obligation at 30% of the national minimum wage. After the period, in case of formal employment, the parent of a teenager who lives with her father must allocate 20% of her net income to support her daughter. Previously, a provisional decision had fixed the maintenance obligation at the equivalent of 1/3 of the mother’s salary, but she pleaded for the decrease in the amount. “Unlike the author’s father, who only has this daughter as a dependent, and explicitly reported help from two older children, the defendant has another daughter under her responsibility”, highlighted the magistrate, stating that the covid-19 pandemic, which has forced massive social isolation and reduced the economic activity of countries, is impacting the business activity carried out by the author’s mother.

Payment of Labor Agreement

Judge Renato Barros Fagundes, of the 23ª Labor Court of Porto Alegre, suspended the payment of part of a labor agreement between former employees of two event organization companies because of the crisis caused by the coronavirus. According to Fagundes, the payment of the installments of the labor agreement will remain suspended until the end of the state of public calamity in the country.

Dear readers, in the face of the various cases presented, there are great chances that future jurisprudence will settle in the sense that the coronavirus was characterized as a situation of fortuitous event or force majeure for most situations.

However, the future is still uncertain. It has been months since the declaration of the World Health Organization (WHO) of the covid-19 pandemic. The time is now to focus on feasible measures, adapting to the present situation and respecting the friendly solution and common sense by the parties. In difficult times, the negotiation technique can be an escape valve in the face of judicialization of such issues.

[1] These are facts or events that are unpredictable or difficult to predict, that cannot be avoided, but that cause consequences or effects for others. For example: phenomena of nature, general strikes (e.g. truckers ‘ strike), public calamities, wars, etc.

[2] Civil Law – introduction and General part – Arnold Wald. 2015.

[3] Art. 478. In contracts of continued or deferred execution, if the provision of one of the parties becomes excessively burdensome, with extreme advantage for the other, due to extraordinary and unpredictable events, the debtor may request the termination of the contract. The effects of the sentence that decrees it will be retroactive to the date of citation.

[4] (Case No.: 1026645-41.2020.8.26.0100)

[5] (Autos n. 5010372-55.2020.8.24.0008).

[6] (Autos n. 0804997-71.2020.8.20.5106)

Rafael De Sordi Barbosa Martins

Lawyer, graduated in law, with emphasis in civil law, from Universidade Presbiteriana Mackenzie (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Business Law from the São Paulo School of Law of the Getúlio Vargas Foundation, author of a book and articles.

Leonardo Da Vinci

Lawyer, graduated in law, with emphasis on Business Law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Post-graduate and Specialist IN Business Law from the São Paulo Law School of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), Vice President of the Business Law Commission of the 33rd subsection of the OAB/SP, author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.

Overnight, one of the most promising sectors of the Brazilian economy was directly affected by the effect of the pandemic, and many Brazilians arrived with the same question: what to do with this already purchased holiday?

Travel agencies are organized daily to check and reduce the losses that passengers and travelers would possibly suffer, and it is already imaginable to understand a more guilty and transparent communication channel between these corporations and their consumers.

The ANAC (National Civil Aviation Agency), above all, has already regulated that the passenger may withdraw from the acquisition with the full refund of the amounts paid, within 24 hours after receiving the transport voucher, but provided that the purchase is positioned up to 7 days before the flight date.

In addition, the Consumer Protection Code also establishes that if the acquisition were made over the internet (or outside the advertising establishment), it would possibly be canceled within 7 days.

When the passenger requests a refund, airlines have up to 7 days (from the date of the request) to make the payment to the customer responsible for the purchase of the air ticket, following the same one used at the time of purchase. customer made the payment with their credit card, the airline has up to 7 days to send the credits to the card operator.

However, in cases where the request for cancellation of the price of the air ticket arrives after 7 days of purchase, the TJSP and the STJ agree that the airlines will have to refund the price of the ticket (including promotional price tickets), retaining from 5% to 20% of the amount of the registration fee , but eye to eye, the cancellation must be made at least in advance, so that these price tickets can be resold through the ventures.

There are a lot of fears and hypotheses on this topic, and it turns out that the closer to the end of the year (the time when tourism in Brazil is even more in demand), the more others worry about their scheduled trips.

Procon even asked passengers to look for agencies where the package was purchased, to learn more about how to proceed with the cancellation, but reminded consumers that, according to the CDC, what was agreed in the contract will have to be fulfilled.

This means, for example, that in case of postponement of promotional or off-season packages, the postponement will have to adhere to the same time and regime and, according to the contract, fines will possibly be charged in case of cancellation.

It is worth mentioning that everything can still change, since the Brazilian legislature itself has worked to pacify this issue and thus guarantee greater legal certainty, not only for consumers, but also for corporations in the tourism sector.

A Pernambuco state law has suspended the billing of additional fees for flight cancellations and package travel from the Covid-19 pandemic. The law will be valid for one year after the completion of the state of public calamity.

According to this law, airlines and agencies are prohibited from charging additional fees for cancellation or postponement due to the novel coronavirus pandemic.

The law also provides for reimbursement of amounts paid by the consumer within 12 months after the end of the pandemic. In case of non-compliance with state law, the company must pay a fine of R$ 6. 000,00 (six thousand reais) for the assessment made, and this amount collected from the fines will be donated to the State Consumer Protection Fund.

Therefore, when it comes to travel and tourism, there will probably still be news about the pandemic and attempts to damage caused to so many Brazilians who had to travel, and in this way, it is mandatory to be aware of any news on the subject. have greater legal protection.

Giovanna Luz Carlos Abogado, graduated in law in Civil Law from Centro Universitário Padre Anchieta – FADIPA (2019) enrolled in the Brazilian Bar Association, São paulino segment (OAB/SP), graduate student in civil proceedings at Faculdade Damsio De Jesus. Attorney at TM Associates.

Due to the emergency approval of the covid-19 vaccination by Anvisa, a discussion arose in the legal field about the possibility of the employer requiring its employees to be vaccinated against the disease, given that there are positions that do not understand the obligation (given the constitutional principle that no one will be forced to do something that is not defined in law), as well as there are positions that understand the requirement of mandatory vaccination, since it is the employer’s responsibility to ensure a safe work environment, the unvaccinated worker cannot put other workers at risk.

Given the numerous discussions on the subject, it is important to highlight the judgment of the STF (Supreme Court) in the sense that the state may determine that the vaccination of the population against the disease is mandatory, without invasive measures and the use of force to require immunization.

In parallel to the STF decision, the recommendation of the Public Ministry of Labor (MPT) is that companies make awareness campaigns about the vaccine and use dismissal for just cause as a form of punishment in the last case. In this way, according to the aforementioned body, workers who refuse to take the Covid-19 vaccine, without medical justification, may be dismissed for just cause.

This understanding of the MPT is based on the principle that vaccination is a common good, and it is up to employers to carry out awareness campaigns, involving workers ‘unions, in order to address the risk of contagion of the disease in prevention programs and include the vaccine among preventive measures to ensure workers’ health.

Therefore, it is necessary to inform that the guidance of the MPT is in accordance with the decision of the Supreme Court (STF), which decided that the government may impose penalties on those who refuse to take the vaccine, as well as with the CLT and various regulatory standards that seek to preserve the health and safety of workers.

In this sense, since the employer is the holder of the directive power related to the organization of labor standards provided for in internal policies, the creator of internal requirements for the hiring of employees and maintenance of their respective jobs, the applicator of punitive measures to employees (resulting from their noncompliance with internal standards) it seems logical to admit the employer’s requirement of vaccination of its employees, with the presentation of their vaccination certificate.

The absence of such proof may admit the adoption of disciplinary measures that may matter in a termination of the employment contract for just cause, resulting from a conduct of indiscipline and/or insubordination of its employees, since it may be applicable by analogy Article 158, sole paragraph of the CLT, which provides that the employer may penalize the employee who refuses to use PPE, since the use seeks to protect the work environment.

Given the above and according to the understandings of Jurists in this sense, it is important to make it clear that this is not a forced vaccination to be imposed on employees, but rather, restriction of rights to those who refuse mandatory vaccination, since the internal rules established by the employer have legal validity as long as they do not matter in abuse of

Of course, there may be employees who, for health reasons, such as pregnant women,

infants etc. they will not be able to be vaccinated, so that such a requirement on the part of the employer would become unenforceable. In any case, such situations should be analyzed by the employer, who should create alternatives for the provision of services of these employees, such as the transfer of these workers to work through the teleworking regime, etc.

According to jurists, the issue involving the mandatory vaccination of workers involves the use of common sense, discernment (without detracting from the issue of Public Health), the collective interest, and respect for business policies and the executive power of the employer, responsible for maintaining a safe and healthy work environment.

Finally, as already stated, the recommendation of the Public Ministry of Labor (MPT) is that companies carry out awareness campaigns and use dismissal for just cause as a form of punishment in the last case. In addition, the employer may also carry out with the corresponding unions, agreements or collective agreements regulating the matter about the vaccination of employees against Covid-19, procedures that will guarantee the employer greater legal certainty on the subject, in order to prevent the judicialization of the matter.

Geovana Carolina Silva de Andrade

Lawyer, graduated in law from Centro Universitário De Campo Limpo Paulista/SP (2017), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2018). Postgraduate in labor law and process from Faculdade Damásio De Jesus. Lawyer at TM Associados.