Regarded as ancillary obligations and often disregarded by the parties, security rights in REM are ancillary obligations to various contracts, and aim to guarantee the debtor’s compliance with the obligation. In other words, in the event that the main obligation is not fulfilled, the creditor may enforce the contractual guarantee.
Therefore, if at maturity, the obligation was not fulfilled, either because the debt was not repaid, the thing was not delivered, among others, the creditor has the possibility of excusing a certain thing within the debtor’s equity or a third guarantor for the redemption of an obligation.
Among the guarantees of contracts the most common are those called real guarantees, which are characterized by being opposable erga omnes, that is, it is valid before everyone.
Despite the fact that it seems simple and easily feasible, collateral does not allow the creditor to “take” / “take” the asset for himself. Article 1428 of the Civil Code1 expressly prohibits the imposition of a commission clause in the scope of contracts that provide for security rights, under the pretext of debtor protection and usury repression2, thus, it is important to pay attention that contracts with security rights must follow a specific procedure in case of default.
First of all, in order to have security in the granting of a security right, it is important that said security right is not only provided for in the contract signed between the parties, but also, following the rule of Article 1.227 of the Civil Code3, when it falls on real estate, the burden of the security right will be constituted only by the real estate registry, that is: the security right must be registered in the registration of the property.
Thus, when the default occurs, the assets, given as collateral and recorded as real encumbrances, will be able to be pledged and submitted to auction through judicial enforcement proceedings, when enforcement occurs through legal process
judicial, or extrajudicial, as in the case of fiduciary alienation that the execution may take place by specific procedure in a notary’s office.
Having overcome these introductory issues of collateral, we now expose the four collateral rights listed in the Civil Code: mortgage, pledge, anti-crisis and fiduciary property. Excluding fiduciary property-specifically governed by arts. 1.361 to 1.368 of the Civil Code, to the other three real rights the common precepts inserted in the general theory of guarantee rights apply (arts. 1.419 to 1.430 of the CC), let us see:
(i) the anticresis is the real right on someone else’s property over which the creditor owns it to perceive the fruits and impute them in the payment of the debt. The creditor will not be able to dispose of the property, since the anticrese falls on the fruits and not on the anticrese property;
(ii) already, the mortgage is the real right in which a property is linked to the payment of the debt, and the value of the property cannot be less than the value of the debt that it guarantees.
A curiosity with respect to the mortgage is that, is in process before the National Congress the bill 3096/2019, which establishes the reverse mortgage, institute that buyer is obliged to pay a lifetime monthly income to the elderly to ensure the right to, in the future, become owner of the mortgaged property, being used primarily for elderly people who want to live in the property, until the end of life, and receive proceeds from the bank, and upon death, the property becomes the property of the bank.
(iii) pledge is the real right that the creditor has over something movable that was delivered to him by the debtor or third party for the security of his credit; and by virtue of which he may withhold it until payment is verified or dispose of it in the absence of this.
In this case there is a right of retention of the thing pledged by the creditor, justified in the event that there are Expenses With thing, by way of compensation, if the expenses were not caused by his fault.
(iv) finally, fiduciary alienation is a real right of guarantee, provided for in law no. 9.514 / 97, as being a legal business by which the debtor-trustee alienates the property, as a scope of guarantee, to the creditor-trustee or holder of the resolvable property4.
Having the term of payment for debt expired and being the debtor in default, it must be constituted in default, to then consolidate the ownership of the property in the name of the trustee, then having the right to sell it at public auction, to, with the value obtained from the sale, satisfy your credit.
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 School of Law of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.
Cindy Massesine Pimentel
Lawyer, graduated in law, with emphasis on public law, from Pontifícia Universidade Católica de Campinas (PUCCAMP -2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2019). Post-graduate in Notarial and registry law from the Renato Saraiva Teaching Complex (CERS), author of articles. Leader of the advisory department at TM Associados
1 Art. 1.428. The clause that authorizes the pledgee, anticretic or mortgage lender to keep the object of the guarantee is null and void if the debt is not paid at maturity.
2 usury, in its original sense, is excessive interest charged on a loan, in a certain amount.
3 Art. 1.227. The rights in REM over Real Estate constituted, or transmitted by acts between the living, are only acquired with the registration in the real estate registry office of the aforementioned titles (arts. 1.245 to 1.247), except for the cases expressed in this code.
4 Art. 22. Fiduciary alienation regulated by this law is the legal business by which the debtor, or trustee, with the scope of collateral, contracts the transfer to the creditor, or trustee, of the resolvable ownership of immovable thing.
Internal policy: do you know what it is and how important it is for your company?
Within any undertaking, especially in a company, it is very important to establish rules and norms that establish, among others, the culture[1] of that organization. Organizational culture, more than the basis for internal policies, phrases of values, mission and vision, is the basis for defining all standards of behavior that guide the development of the company and its relationship with its customers, suppliers and employees.
When we talk about internal policy, we are talking about some documents that, by stamping the standards of behavior of an organization, will guide all the activity of the company, either in its development or in its relations, and such documents should be based on pre-established principles and rules.
Defining guidelines is essential for the development of the company to occur effectively, that is, for your business to grow and develop based on a solid foundation, with characteristics that make sense with the current market. For example, nowadays, with the General Data Protection Law, having as a guiding principle the correct treatment of the data collected has become essential.
Internal policies can be instituted through internal regulations, career plans, codes of ethics or conduct, Compliance or corporate governance programs, let’s see:
For the elaboration of an internal policy, specialized legal assistance is essential, since a technical team specialized in risk contingency, sustainable and ethical development, as well as our legal system, is necessary.
However, the good elaboration of organizational strategies cannot be restricted to only written documents, but in concrete activities, present and identifiable in the most diverse sectors and activities of organizations. Like a diet or physical exercise, it is necessary that for the internal policy to be really effective, constant training, supervision and adaptation of the company will be necessary whenever it is necessary.
It is not enough to write beautiful documents and wait for the magic to be done. Hard and continuous work is needed to ensure that a company’s internal policy is, in fact, effective and efficient, mirroring the reality of the business and its future and strategic expectations.
Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Attorney at TM Associates.
[1] organizational or business culture is the combination of behaviors, mission, attitudes, expectations, and values of a company. It’s what drives leadership and employees on a daily basis. Culture goes beyond written institutional norms, as it directly influences the actions of the company’s teams and guides the entire growth and development of the business.
Security rights in REM
Regarded as ancillary obligations and often disregarded by the parties, security rights in REM are ancillary obligations to various contracts, and aim to guarantee the debtor’s compliance with the obligation. In other words, in the event that the main obligation is not fulfilled, the creditor may enforce the contractual guarantee.
Therefore, if at maturity, the obligation was not fulfilled, either because the debt was not repaid, the thing was not delivered, among others, the creditor has the possibility of excusing a certain thing within the debtor’s equity or a third guarantor for the redemption of an obligation.
Among the guarantees of contracts the most common are those called real guarantees, which are characterized by being opposable erga omnes, that is, it is valid before everyone.
Despite the fact that it seems simple and easily feasible, collateral does not allow the creditor to “take” / “take” the asset for himself. Article 1428 of the Civil Code1 expressly prohibits the imposition of a commission clause in the scope of contracts that provide for security rights, under the pretext of debtor protection and usury repression2, thus, it is important to pay attention that contracts with security rights must follow a specific procedure in case of default.
First of all, in order to have security in the granting of a security right, it is important that said security right is not only provided for in the contract signed between the parties, but also, following the rule of Article 1.227 of the Civil Code3, when it falls on real estate, the burden of the security right will be constituted only by the real estate registry, that is: the security right must be registered in the registration of the property.
Thus, when the default occurs, the assets, given as collateral and recorded as real encumbrances, will be able to be pledged and submitted to auction through judicial enforcement proceedings, when enforcement occurs through legal process
judicial, or extrajudicial, as in the case of fiduciary alienation that the execution may take place by specific procedure in a notary’s office.
Having overcome these introductory issues of collateral, we now expose the four collateral rights listed in the Civil Code: mortgage, pledge, anti-crisis and fiduciary property. Excluding fiduciary property-specifically governed by arts. 1.361 to 1.368 of the Civil Code, to the other three real rights the common precepts inserted in the general theory of guarantee rights apply (arts. 1.419 to 1.430 of the CC), let us see:
(i) the anticresis is the real right on someone else’s property over which the creditor owns it to perceive the fruits and impute them in the payment of the debt. The creditor will not be able to dispose of the property, since the anticrese falls on the fruits and not on the anticrese property;
(ii) already, the mortgage is the real right in which a property is linked to the payment of the debt, and the value of the property cannot be less than the value of the debt that it guarantees.
A curiosity with respect to the mortgage is that, is in process before the National Congress the bill 3096/2019, which establishes the reverse mortgage, institute that buyer is obliged to pay a lifetime monthly income to the elderly to ensure the right to, in the future, become owner of the mortgaged property, being used primarily for elderly people who want to live in the property, until the end of life, and receive proceeds from the bank, and upon death, the property becomes the property of the bank.
(iii) pledge is the real right that the creditor has over something movable that was delivered to him by the debtor or third party for the security of his credit; and by virtue of which he may withhold it until payment is verified or dispose of it in the absence of this.
In this case there is a right of retention of the thing pledged by the creditor, justified in the event that there are Expenses With thing, by way of compensation, if the expenses were not caused by his fault.
(iv) finally, fiduciary alienation is a real right of guarantee, provided for in law no. 9.514 / 97, as being a legal business by which the debtor-trustee alienates the property, as a scope of guarantee, to the creditor-trustee or holder of the resolvable property4.
Having the term of payment for debt expired and being the debtor in default, it must be constituted in default, to then consolidate the ownership of the property in the name of the trustee, then having the right to sell it at public auction, to, with the value obtained from the sale, satisfy your credit.
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 School of Law of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.
Cindy Massesine Pimentel
Lawyer, graduated in law, with emphasis on public law, from Pontifícia Universidade Católica de Campinas (PUCCAMP -2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2019). Post-graduate in Notarial and registry law from the Renato Saraiva Teaching Complex (CERS), author of articles. Leader of the advisory department at TM Associados
1 Art. 1.428. The clause that authorizes the pledgee, anticretic or mortgage lender to keep the object of the guarantee is null and void if the debt is not paid at maturity.
2 usury, in its original sense, is excessive interest charged on a loan, in a certain amount.
3 Art. 1.227. The rights in REM over Real Estate constituted, or transmitted by acts between the living, are only acquired with the registration in the real estate registry office of the aforementioned titles (arts. 1.245 to 1.247), except for the cases expressed in this code.
4 Art. 22. Fiduciary alienation regulated by this law is the legal business by which the debtor, or trustee, with the scope of collateral, contracts the transfer to the creditor, or trustee, of the resolvable ownership of immovable thing.
We briefly point out about the moratorium Penal clause
According to the Chicago School of law and economics, individuals react to negative and positive economic stimuli, causing the law to directly influence the economy and the economy directly the law.
In this line of reasoning the study of penal clauses in contracts is inseparable from its reason for creation, based among others on the concept of economic law.
Through penal clauses, economic consequences are established for a party that fails to comply with its obligations. More than that, the penal clause aims to force the contractual performance so that the performance must be more economically advantageous than the default.
To illustrate your application imagine the following case:
In a purchase and sale agreement it is stipulated that the payment be made within 30 days, but the contract does not define a fine, interest, or any other penalty for late payment. In this example we have that economically it is more viable to wait for an eventual execution of the outstanding amount than to make the payment on the due date.
Now imagine that in this same contract a penalty of 2% was stipulated for default and interest of 1% per month from the date of default until its effective payment. In this example, respecting the specifics of each case, the stipulation of these penalties makes the payment on the stipulated date more economically and legally advantageous than its default, which encourages the agent to comply with the contractual obligation.
Now that we have gone through the rational that sustains the stipulation of penal clauses, in the civil code, more specifically in Article 409[1], we have the general concept of Penal clause, as well as the creation of 2 (two) species of penal clauses, being the compensatory or indemnifying, and the moratorium clause, of which we will address in this article only the second.
The Penal moratorium clauses are those that provide for a pecuniary value as a penalty for default, but that do not include in their eventual value compensation for losses and damages, which, in practice, will entail to the defaulting party not only the payment of the fine, but also of the losses and damages, if any.
In both types of penal clauses, these cannot have their value fixed at random. On the contrary, the values of the penalties must, among others, observe the limit of the value of the contract, as we can observe the provisions of articles 410, 411 and 412[2], all of the Civil Code.
Exception made to this limitation is for the cases of the application of the efficient default theory, which argues that, in some cases, the default presents a better economic result than the default, and, in these cases, the default is motivated by the legal system (this theory is used, for example, in contracts involving professional athletes, in which the value of the penalty for early termination is much higher than the value of the contract itself).
We also emphasize that the double incidence of penal clauses is prohibited, that is, 2 penalties for 1 single obligation.
Finally, although penal clauses make it more economically and legally advantageous to comply with an obligation, their provision does not guarantee compliance, which must be sought through contractual guarantees, such as: guarantee, bail, surety; real guarantees; among others.
Leonardo Theon de Moraes-lawyer, graduated in law, with emphasis in business law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Postgraduate 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), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.
Pedro Anselmo Boaventura-graduated in law, from Centro Universitário Padre Anchieta (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Paralegal of the advisory Department of TM Associados.
To learn more about collateral, see the article published at the link: https://tmassociados.com.br.br/post/direitos-reais-de-garantia
[1] Art. 409 the penal clause stipulated jointly with the obligation, or in a subsequent Act, may refer to the complete non-performance of the obligation, that of some special clause or simply to the late payment.
[2] Art. 410. When the penal clause is stipulated for the case of total default of the obligation, it will become an alternative for the benefit of the creditor.
Art. 411. When the penal clause is stipulated for the case of late payment, or in special security of another determined clause, the creditor will have the discretion to demand the satisfaction of the penalty commended, together with the performance of the main obligation.
Art. 412. The amount of commination imposed in the criminal clause may not exceed that of the main obligation.
Application of the LGPD in Labor Relations
In 2018, the LGPD was published, a law that has as its main objective the protection of the freedom and privacy of the natural person, which since 2022 has become a fundamental right of every citizen.
Because it is such an important topic, the application of this law should occur whenever there is the collection of personal data from individuals, as well as the storage and use of this data, such as in consumer relations and Labor Relations, which is the segment that we will focus on in this article.
In labor relations, the LGPD comes to confirm the labor standards regarding the legal responsibility that the employer/company has in relation to the data of its employees/service providers, to improve the security of the storage of this data (by physical or digital means), to ratify the purpose of the employee/service providers ‘ data with the contractual clauses of their employment contract, or the contract for the provision of services, and to confirm the good faith of the employer/company with the processing of this data.
The application of the LGPD must be respected regardless of the work regime adopted, whether CLT model, or for a service provider.
It is important to bear in mind that the application of the LGPD must be respected and used throughout the contractual flow in labor relations, that is, from the selection process, the law must be respected and the standards applied.
Pre-contractual phase: this phase, also known as the selection process, is the first contact of the company with the candidate. Thinking about it, in the pre-contractual phase, the collection of any data that may generate discriminatory criteria among candidates, such as blood tests, pregnancy tests or consultation with credit protection agencies, is prohibited, respecting the principle of “non-discrimination”.
To ensure the protection of candidates who have not been chosen, the company must be attentive and inform all those not selected about the policy of using the data that has been provided, and more importantly, what the company will do with the data of these not selected.
Contractual phase: in this phase the selected candidate will become an employee or service provider of the company that hired him, and therefore, he must have knowledge about the company’s data processing policy, about the use and storage of these data, and must give his consent to this policy and its application. It is important to note that these lgpd clauses must be highlighted in the documents, thus guaranteeing the principles of purpose, transparency and security.
Post-contractual phase: this is the phase of dismissal of the employee/service provider of the company, which regardless of what was the reason for the contractual termination, must also observe and respect the LGPD.
In the case of Labor Relations, there is an obligation to keep documents by a legal imposition, for example, in cases of labor actions, in which companies have a legal guarantee of keeping evidentiary documents of former employees/service providers within the statute of limitations of the right to file labor action.
With the validity of the administrative sanctions imposed by the LGPD, it is of paramount importance that all companies invest in information technologies, training for the use and processing of personal data in their departments and that they observe the application of the LGPD in the storage of these data. Thus, the performance of a lawyer specialized in LGPD becomes essential for the company to be adequate and not suffer any punishment.
Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Lawyer at TM Associados.
Dating contract
PARTICULAR INSTRUMENT CONSTITUTING DATING
By this particular instrument:
[name], [nationality], single, [profession] holder of the identity card RG nº [o], registered in the CPF/MF under nº [o], resident and domiciled at [address], neighborhood [o], in the city of [o], ZIP code [o]; and
[name], [nationality], single, [profession], holder of the identity card RG nº[ o], registered in the CPF / MF under nº[ o], resident and domiciled at [address], neighborhood [o], in the city of [o], ZIP code [o];
Hereinafter referred to collectively as the parties and individually as the;
WHEREAS:
(i) of their own free will and free from any coercion, on the date of [o] The parties entered into an affective relationship of courtship;
(ii) the parties do not have the present purpose of forming a family;
(iii) the parties reside in separate dwellings and bear their own and their families ‘ support separately.
Both greater and capable, in the full enjoyment of their mental faculties, according to their wills, stipulate and oblige each other, reciprocally, the clauses and conditions that follow:
CHAPTER I-OF THE OBJECT
1.1 the object of this instrument is the consolidation of the affective relationship between the parties, without any present intention of constituting a family, marital bond or even living in a stable union.
1.2 the parties declare that they have an affective relationship with each other, popularly known as “courtship”, defined as “a relationship in which a couple commits themselves within the scope of the social sphere, but without establishing any type of marriage link before Brazilian Civil Law or institutions of a religious nature”, initiated on the date of [o], retroacting the conditions of the present to this date.
CHAPTER II-OF VALIDITY
2.1 this agreement is effective from the date of commencement of the relationship, as stated in clause 1.2 of this Agreement, and shall remain in effect until the relationship is dissolved or converted, expressly and formally, into a common law partnership or marriage.
CHAPTER III-COHABITATION
3.1 the parties do not cohabit in the same property, and separately bear their own support and that of their family members.
3.1.1 the eventual stay of one of the parties in the residence of the other (past, present or future), will not imply recognition of the relationship of coexistence necessary for the configuration of a stable Union, notably because there is no present intention to constitute a family or establish a stable union.
[Comment: use when there is no common cohabitation]
3.1 the parties cohabit in the same property and share the expenses arising from living together, without any present purpose of forming a family or establishing a stable union.
3.1.1 the parties declare that life together shall be governed by the principle of complete equality, each party being responsible for meeting its own expenses and contributing to the expenses of the couple in proportion to their respective incomes.
[Comment: use when there is common cohabitation]
CHAPTER IV – TOTAL SEPARATION OF ASSETS
4.1 as a result of the courtship relationship that they nurture, the parties assume and undertake, from now on, that the total separation of the assets that each one owns or will own during the courtship will prevail between them.
4.2 all movable and immovable property, rights and income acquired by either party before or during the term of this instrument shall not be communicated to the other party under any circumstances.
CHAPTER V-CHILDREN
5.1 in the event of a pregnancy, the parties declare that there will be no conversion of courtship into a stable union, but it is established that they will not be exempt from the rights and duties arising from Brazilian law evolving conception.
CHAPTER VI-TERMINATION OF THE CONTRACT
6.1 upon the termination of the relationship between the parties, this instrument will be terminated automatically, without the need to send any notification or draw up a distraction between the parties.
6.1.1 resolution of this instrument may occur:
Involuntarily, in case of force majeure or fortuitous event;
by unilateral or bilateral resilience, with simple declaration by one or both parties;
termination, in the event of the death of one or both of the parties, in which case there will be no rights of succession.
6.2 The Parties hereby irrevocably and irrevocably waive any material assistance to each other, by way of maintenance or otherwise, in the event of termination of this relationship or this instrument, in any of its forms.
CHAPTER VII-OF THE FINAL PROVISIONS
7.1 this instrument is signed irrevocably, irretrievably and irrevocably with respect to the patrimonial dispositions established herein, obliging the contracting parties, and their heirs and successors.
7.2 the court of the city of [o], state of São Paulo, is elected to settle any dispute arising from this instrument.
And, because they are thus fair and agreed, the parties sign this instrument in two (2) copies of the same form and content, together with two (2) witnesses, so that it can produce its legal and legal effects.
[o], [o] of [o] of [o].
[part Name] [part name]
Witnesses:
1.____________________
Name:
RG:
CPF:
2.____________________
Name:
RG:
CPF:
(This signatures page is an integral part of the Particular instrument constituting courtship, between [the] and [the] concluded in [the] OF [THE] of [the] of])
The requirements for the reduction of share Capital of limited company
The reduction of the share capital of a limited company, because it provides for a detailed procedure, different from that to be followed in the event of an increase in share capital, sometimes generates doubts when it should be done.
Before we get into the specific topic, brief considerations about social capital are necessary. The share capital of a limited company corresponds to the value indispensable for the start of its activities and can be composed of movable property, immovable property, semovents and/or cash, in other words, by everything capable of being valued monetarily.
This amount must be subscribed and paid. The subscription is the promise of delivery of the amount indicated as being that of the share capital, while the payment is the actual delivery, that is, the payment, which may or may not occur at the same time as the subscription.
This is because the partners can, when constituting the company or increasing the share capital, subscribe to their share capital and, subsequently, integrate it. This is what usually happens when the share capital consists of real estate. This is because the integration of ownership of real estate occurs only with the transfer in registration.
Once the share capital has been paid up, the partners can increase it, being a requirement for this only the payment of all the subscribed share capital. Once this is done, the partners must amend the social contract of the company so that it provides for the operation carried out.
Having outlined these brief considerations, we move on to the hypotheses of reduction of share capital that may occur when: (I) the company suffers irreparable losses or (ii) it is excessive in relation to its corporate purpose.
For the first hypothesis, the payment of the share capital is a required requirement and the reduction of the share capital will be carried out through a proportional decrease in the nominal value of the company’s shares. The operation will only be carried out with the recording, in the public registry of Commercial Companies, of the minutes of the meeting/meeting of partners that has approved it. Once this is done, the partners must amend the social contract of the company in order to provide for the reduction of the share capital.
For the second hypothesis, the payment of the share capital is not necessary and, in this case, the reduction of the share capital will be made through the restitution of part of the value of the shares to the partners or through the waiver of the installments still due, with a proportional decrease, in both cases, of the nominal value of the shares. Before, however, the social contract of the company is amended in order to provide for the reduction of the share capital, some steps must be followed:
The above-mentioned period of 90 (ninety) days is intended to give the creditors of the company the opportunity to claim the reduction of its share capital. If this is done by any creditor of the company, the reduction will be conditioned on proof of payment of the claimed credit or the judicial deposit of its value.
Failure to comply with the legally provided procedure may result in the nullity of the transaction and, consequently, invalidate the amendment to the social contract that provided for it.
Anna Paula Piovesan Pinheiro
Lawyer, graduated in law, with emphasis in Civil Law, from Universidade Presbiteriana Mackenzie, enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2021). Author of articles. Lawyer at TM Associados.
Mischief in business
In an interview with Ana Paula Padrão, on Masterchef, a program broadcast by Band, The Head Chef, Paola Carosella, revealed the “business strategy” used to buy her partners ‘ share of the restaurant.
Paola said that when she idealized her restaurant in São Paulo, she would not have the financial conditions to structure it, and ended up getting seven partners to invest in the restaurant. Paola also said that she was the only one who worked, but that the restaurant had a design chosen by her partners and that it did not have “her face”.
To be able to buy the participation of her partners, in order to retain control of the restaurant’s company, the chef admitted in the interview that she “left” the restaurant for about three months, so that the turnover would fall purposefully, with the intention of decreasing the amount to purchase the shares of her partners. Thus, after the execution of his plan, he bought the share of his partners for less than what the restaurant was actually worth.
True or not, the subject generates curiosity and we will deal here with the societal impacts that the conduct (if perpetrated) can cause. First, it should be clarified that the partner of a company does not need to work in it. The partner is responsible for paying (paying) the subscribed (promised) share capital, having a voice and vote in the social deliberations (meetings or meetings of partners), participating in the results (profit or loss) and being entitled to the repayment of capital.
The one who works and does the administration of the business in his day to day is the administrator who may or may not be one of his partners. The administrator(s) as payment for their work receive a pro-labor remuneration.
From the above explanation, we see the first incongruity in the speech of the head chef, who tries to justify her discontent for being “the only partner to work”. If your partner cannot be expected to work in the business, the work is assigned to the employees of the company, under the administration and control of the administrator(s). The partners are responsible, precisely, the function of partner, as stated above, and there is no duty to work in/for the company.
The second point that draws attention from the corporate point of view, refers to the “business strategy” narrated by Chef that aimed to buy the participation of her partners for a lower amount than the company was really worth. To better clarify this aspect, in corporate relations, good faith is manifested to the maximum degree, and the social Interest, or the interest of the company, should guide the actions of the partners and administrators.
Thus, the duty of loyalty to the company and to the other partners is imposed on the partners and, even more so, on the directors. The duty of loyalty is condensed into concrete duties of collaboration and protection, and members and directors must actively collaborate to safeguard the social Interest and refrain from conduct that may harm the interest of the company and expectations of other members.
The directors also have a duty of trust, which translates into the duty of the administrator to act in accordance with the trust placed in them by the partners in the conduct of the company’s business.
In the case narrated, it is verified that when “leaving” the restaurant for about three months, the partner, taking into account her role as administrator, did not fulfill her duties in good faith and loyalty, since she acted contrary to the interests of the company and the other partners, deliberately letting the turnover fall, to achieve a personal interest of acquiring control of the company for herself.
The acts narrated by Chef, when analyzed against the premises of corporate law, should not be used as an example, since when taking into account the principles already pointed out in this article, they are contrary to good faith, Ethics in business and relationships, among others.
Legal consequences for practices such as this may include:
(i) condemnation for the payment of compensation for material damage to the other partners:
(a) in an amount equivalent to that which they no longer receive from the sale of their shares in the company; and
(b) in an amount equivalent to what they no longer received for the results of the company while they were still partners.
(ii) conviction for the payment of compensation for moral damages to the other partners:
(A) in an amount equivalent to the loss of the partners ‘ chance that if the restaurant’s numbers were better, they might not be interested in selling; and
(b) in value necessary so that the conduct is not repeated (punitive character).
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 School of Law of the Getúlio Vargas Foundation (2014), Master in political and Economic Law from the Mackenzie Presbyterian University (2017), author of books and articles, Lecturer, University professor, member of the São Paulo Lawyers Association (AASP), member of the corporate law and mergers and Acquisitions Committee of the International Bar Association. Founding partner of TM Associados.
Cindy Massesine Pimentel
Lawyer, graduated in law, with emphasis in public law, from Pontifícia Universidade Católica de Campinas (PUCCAMP -2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2019). Post-graduate in Notarial and registry law from the Renato Saraiva Teaching Complex (CERS), author of articles. Leader of the advisory department at TM Associados.
We briefly point out about the moratorium Penal clause
According to the Chicago School of law and economics, individuals react to negative and positive economic stimuli, causing the law to directly influence the economy and the economy directly the law.
In this line of reasoning the study of penal clauses in contracts is inseparable from its reason for creation, based among others on the concept of economic law.
Through penal clauses, economic consequences are established for a party that fails to comply with its obligations. More than that, the penal clause aims to force the contractual performance so that the performance must be more economically advantageous than the default.
To illustrate your application imagine the following case:
In a purchase and sale agreement it is stipulated that payment is made within 30 days, but the contract does not define a fine, interest, or any other penalty for late payment. In this example we have that economically it is more viable to wait for an eventual execution of the outstanding amount than to make the payment on the due date.
Now imagine that in this same contract a penalty of 2% was stipulated for default and interest of 1% per month from the date of default until its effective payment. In this example, respecting the specifics of each case, the stipulation of these penalties makes the payment on the stipulated date more economically and legally advantageous than its default, which encourages the agent to comply with the contractual obligation.
Now that we have gone through the rational that sustains the stipulation of penal clauses, in the civil code, more specifically in Article 409[1], we have the general concept of Penal clause, as well as the creation of 2 (two) species of penal clauses, being the compensatory or indemnifying, and the moratorium clause, of which we will address in this article only the second.
The Penal moratorium clauses are those that provide for a pecuniary value as a penalty for default, but that do not include in their eventual value compensation for losses and damages, which, in practice, will entail to the defaulting party not only the payment of the fine, but also of the losses and damages, if any.
In both types of penal clauses, these cannot have their value fixed at random. On the contrary, the values of the penalties must, among others, observe the limit of the value of the contract, as we can observe the provisions of articles 410, 411 and 412[2], all of the Civil Code.
Exception made to this limitation is for the cases of the application of the efficient default theory, which argues that, in some cases, the default presents a better economic result than the default, and, in these cases, the default is motivated by the legal system (this theory is used, for example, in contracts involving professional athletes, in which the value of the penalty for early termination is much higher than the value of the contract itself).
We also emphasize that the double incidence of penal clauses is prohibited, that is, 2 penalties for 1 single obligation.
Finally, although penal clauses make it more economically and legally advantageous to comply with an obligation, their provision does not guarantee compliance, which must be sought through contractual guarantees, such as: guarantee, bail, surety; real guarantees; among others.
Leonardo Theon de Moraes-lawyer, graduated in law, with emphasis in business law, from Universidade Presbiteriana Mackenzie (2012), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2012). Postgraduate 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), author of books and articles, Lecturer, University professor and member of the São Paulo Lawyers Association (AASP). Founding partner of TM Associados.
Pedro Anselmo Boaventura-graduated in law, from Centro Universitário Padre Anchieta (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Paralegal of the advisory Department of TM Associados.
[1] Art. 409 the penal clause stipulated jointly with the obligation, or in a subsequent Act, may refer to the complete non-performance of the obligation, to that of some special clause or simply to the late payment.
[2] Art. 410. When the penal clause is stipulated for the case of total default of the obligation, it will become an alternative for the benefit of the creditor.
Art. 411. When the penal clause is stipulated for the case of late payment, or in special security of another determined clause, the creditor will have the discretion to demand the satisfaction of the penalty commended, together with the performance of the main obligation.
Art. 412. The amount of commination imposed in the criminal clause may not exceed that of the main obligation.
The monetary correction in labor justice
In recent years, the Labor Court has issued conflicting understandings about the monetary correction of Labor debts. This is because, in the past, the monetary correction and the application of interest on debts were regulated by Article 39 Of Law No. 8,177/1991, which provided for late payment interest at the daily reference rate (“TRD”) between the maturity date of the obligation and payment.
However, paragraph 1 of that article also provided for the application of interest of 1% per month to overdue labor debts, counted from the filing of the complaint. In this mainstay, the courts adopted the understanding that the caput referred, in fact, to monetary correction, since the TRD is entitled to the updating of the national currency, and that paragraph 1 referred to the remuneration of money in time, through the incidence of interest of 1% per month.
Subsequently, Law No. 8,660 / 1993 replaced the TRD with the Reference Rate (“TR”). However, initially, outside the labor sphere, in the Supreme Court (“STF”), through direct actions of unconstitutionality 4.357, 4.372, 4.400 and 4.425, debates arose about the ability of the TR to be used as a monetary correction index, which is why the application of the IPCA-E (national index of consumer prices Special Broad) was brought only for the debts of the public treasury, until the legislative power defined another index.
In this sense, under the terms of the STF decision, the Superior Labor Court (“TST”) also adopted the application of IPCA-E as a monetary correction index for Labor debts.
However, with the labor reform in 2017, paragraph 7 of Article 879 of the CLT explicitly brought the determination of the use of the TR in the correction of debts, but the Labor Court maintained the understanding of unconstitutionality of the TR as such index, as well as of the aforementioned device.
Thus, in the face of such contradiction and legal uncertainty, the Supreme Court determined the suspension of Labor trials of ongoing processes that involved the application of Article 879, paragraph 7, of the CLT, until they decided on the issue involving the theme of interest and monetary correction.
Finally, the current jurisprudential and, today, binding understanding was established, which is the incidence of IPCA-E in the pre-judicial phase and, from the filing of the lawsuit, the SELIC rate, prohibited the cumulation of this with other indices and as occurs in the civil sphere.
It is important to note that it was determined that the parameters set were also applied to the cases that were adjudicated, provided that the judgment did not expressly define the monetary correction and interest and that the debts had not yet been paid.
Despite the binding effect of the decision, there are still disagreements in the courts regarding the incidence of late payment interest, which is why some judges have applied interest of 1% per month in the pre-judicial phase in addition to the correction index of the IPCA-E, since it is understood, by the content of the STF decision, that the Selic rate cumulated with said interest may characterize double conviction (“bis in idem”).
Therefore, it can be concluded that the thesis signed by the SFT, which excluded the interest of 1% per month from the filing of the lawsuit and determined the incidence of the IPCA-E in the pre-judicial phase and the SELIC rate from the citation, guarantees the non-excessive and abusive increase in time of the labor debts sued by the employee against the employer and eventually granted by the court.
Victory Ships Caltran. Lawyer, graduated in law, with emphasis in private law, from Pontifícia Universidade Católica de Campinas (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2021). Lawyer at TM Associados.
Public Domain
If you are an attentive reader and follow the latest trends in the publishing market, you probably noticed the great movement of publishers to publish their own version of George Orwell’s “1984” in 2021. The same movement happened in 2015 with the book “The Little Prince” by Antoine de Saint-Exupéry.
These works have already completed good years of age, having been published, respectively, in 1949 and 1943, and already have the ranks of classics of world literature. So why have so many different publishers bothered to make their own versions available so recently?
Well, the answer is simple: novels fell into the public domain in those years. Knowing this, new questions arise: What does the expression “fall into the public domain” mean and when exactly does this happen?
To understand the public domain, you need to understand what copyright is, we explain:
The authors of literary, artistic and scientific works have a number of rights to their objects of creation. These rights are divided between moral and patrimonial rights, which complement each other but are not confused.
Moral rights are inseparable from the person of the creator, that is, he cannot commercialize and transfer these rights by any instrument. A classic example of a moral right is the right to have your authorship recognized, so as to have your name linked to the work for all eternity.
On the other hand, the patrimonial rights of the author are those that can be taken advantage of financially. These, unlike moral ones, have a validity period and can be transferred to third parties, such as the right to reproduce the work, which is what happens when a musician allows his music to play in a movie, for example.
As a rule, authors enjoy these property rights while they are still alive. When they die, the heirs, if any, enjoy these rights for a period of 70 (seventy) years counted from January 1 of the year following the author’s death.
It is only after this period that the work falls into the public domain, when society begins to take advantage of the work free of patrimonial rights, without the need, therefore, for authorization or payment of any license amount, in order to break with the monopoly that was previously the author’s. This is what our Copyright Law provides (law nº 9.610, of 1998).
Soon, as George Orwell died in 1950, all his works fell into the public domain in the year 2021, which allowed the patrimonial rights, in particular the right to reproduce his books, to no longer belong to a single publisher (Companhia das Letras), but to all interested parties. That is why today it is possible to find a multitude of editions of his works, of all sizes, tastes and prices in bookstores, and, because of the immortality of moral rights, The Binding of the work to the author will remain even if it has “fallen into the public domain”.
Ana Carolina Gracio de Oliveira. Lawyer, graduated in law, from Universidade Estadual Paulista “Júlio de Mesquita Filho” (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2021). Postgraduate in Civil and Business Law from Faculdade Damásio De Jesus. Author of articles. Head of the litigation department of TM Associados.