The Superior Tribunal of Justice (“STJ”) decided that minority shareholders who own less than 5% of the share capital of a company are not able to file civil liability suits in favor of the company against its officers or directors (REsp nº 1.741.678/SP, 3rd Chamber, j. June 12th, 2018, Reporting Justice Ricardo Villas Bôas Cueva). In this casele, STJ declared that the standing of a shareholder to file such suit depends on the existence of a preceding deliberation of the shareholders’ meeting and, along with that, the ownership of shares in the amount of at least 5% (five per cent) of the share capital of the company.

According to STJ, article 159, paragraphs 3rd and 4th of Law No. 6.404/74 (“Law of Corporations”) legitimates the shareholder, in an exceptional regimen, to file suit seeking the liability of an officer or director of the company. Such standing, however, depends upon the existence of a preceding shareholders’ meeting deciding the matter. In case the meeting decides for the seeking of the liability of the officer and the company does not file suit in the period of 3 (three) months, any shareholder may do so. However, in case the shareholders’ meeting rejects the filing of such suit, the Law of Corporations authorizes shareholders to file it, pleading compensation for the company, as long as the shareholder owns at least 5% (five per cent) of the share capital.

The reasoning applies to the filing of civil liability suits sought by the company due to being harmed by actions of the officer or directors. In case there is direct damage to the shareholder or to a third party, either may freely seek repair individually, making use of the suit provisioned for in article 159, paragraph 7th, of the Law of Corporations.

São Paulo State Court of Justice (“TJ-SP”) acknowledged the abusiveness of making use of a 6% (six per cent) per year spread rate as a fixed rate to which a variable remuneratory interest rate is summed (Civil Appeal nº 1008646-17.2016.8.26.0100, 14th Civil Chamber, j. 22.08.2018, Reporting Judge Lígia Araújo Bisogni).

The decision results from an appeal of an entity under corporate reorganization against a sentence from a collection suit filed by six financial institutions seeking the enforcement of payments. The debt, superior to R$ 71 million, had its origin in Bank Credit Notes and its value had been recomputed to apply remuneratory interest rate to it at the average market rate, regardless of a contractual term appointing a distinct index.

TJ-SP decided that the charging of a fixed rate as “spread” characterizes “bis in idem”, thus making it mandatory to exclude such provision from the composition of the debt, since it its abusive. Furthermore, regardless of the applicable index, the inclusion of a variable rate – whether it be Selic or CDI/Cetip – along with a fixed rate represents noticeable aggressiveness in the seeking of profit. The decision, finally, highlights the need to adopt a more favorable index to the debtor, in accordance with market rates utilized in that kind of financial operation.

STJ decided that former partners of a business association which was dissolved have a legitimate interest in continuing with a lawsuit in which such entity was a party. The legitimate interest persists after filing of the dissolution, even without proof of liquidation (REsp 1.652.592/SP, 3rd Chamber, j. June 5th, 2018, Reporting Minister Sanseverino).

The Court maintained the decision from TJ-SP, pointing out that the extinction of the business association is comprised of three distinct moments: dissolution, liquidation and extinction of the legal entity. In this way, the liquidation is only completed after the presentation of a liquidation report and the final financial reports, acts which are followed by the registration of the rescission contract signed by the partners, in accordance with Article 1.103 of the Civil Code.

Given these facts, even after filing of the rescision agreement of the association at the board of trade, the liquidator must keep executing its duties, realize assets and pay liabilities, in order to share eventual remaining equity among the partners. The joining of the partners in the suit would allow the clarification of the occurrence of the end of liquidation or, in another case, allow the incorporation of credits arising from the suit to the assets of the legal entity undergoing liquidation, among the partners or the successors of such credits.

Leasing contracts regulate the financing of goods for a determined period, creating the option of, at the end of the contract, acquiring or returning the good for a previously established value. (REsp 1.658.856-RJ, 3rd Chamber, j. October 16th, 2018, Reporting Justice Andrighi).

The STJ entered judgment of a consumer class action filed by the Consumer Defense Commission of the Legislative Assembly of the State of Rio de Janeiro, in which the Commission argued the abusiveness of clauses authorizing the collection of unmatured installments, in the case of annulment of the contract due to the loss of the good with no fault from the consummer. The Commission sought the protection of consumers in the case the good was lost due to fortuitous event or force majeure, with no fault from the consumer.

The financial institutions were condemned by the court of second instance to refund, doubled the amount, the previously charged values, given those were undue. The appellate courts determined the presentation of individualized reports that allowed for the verification of the actual duration of the lease contracts made and entered into in the past 10 years.

The aforementioned decision was the object of an Special Appeal to the STJ, which decided for the partial granting of the appeal, enabling the collection of matured installments in the case the consumer had contracted insurance for the good which is object of the leasing contract. The Court decided, therefore, for the impossibility of including acceleration of payment clauses in leasing contracts.