6/30/2021
In last April, we reported two decisions by the Court of Justice of São Paulo (TJ-SP), which granted the replaecement of the IGP-M index by the IPCA in commercial lease agreements, due to COVID-19 and the abrupt increase in the IGP-M index in recent months.
However, this is a very controversial issue and, despite some new decisions approving the provisional replacement of the index (for example: TJ-SP – Interlocutory Appeal No. 2086372-83.2021.8.26.0000, j. 06.28.2021), we have noticed a higher trend of the courts to maintain the index originally established in the agreements, so as not to intervene in private commercial relations, in favor of the principles of minimum intervention and the exceptionality of judicial contractual amendment.
In this way, we mention the recent decision of the Court of Appeals of the State of Rio Grande do Sul[1], which reversed the preliminary decision rendered in the records of a public class action, that granted the replacement of IGPM-M / IGP-DI index by the IPCA in commercial lease agreements.
In this case, the Shopkeepers’ Trade Union of Porto Alegre – RS filed a class action against three Shopping Centers, claiming that, even with the broader functioning of trade, the adjustment of the commercial lease agreements by the IGP-M/DI index would make activities unfeasible to the tenant shopkeepers, given that the index registered historic highs in the last months.
In this scenario, the Trade Union requested the granting of an injunction to modify the adjustment index of the agreements set with the Shopping Centers, from the IGP-M to the IPCA, under penalty of a daily fine.
In the first instance, the preliminary measure was granted, and the judge understood that the COVID-19 pandemic justifies the adoption of “a series of measures and postures that are necessary to minimize the harmful consequences in all areas”.
Two of the Shopping Centers filed an appeal, which was approved by the Court of Justice to reverse the decision of the lower court, on the grounds that the appellants granted several benefits to the Storekeepers and that the intervention of the Judiciary Branch in the private relations is unacceptable without prior and wide production of evidence.
In another equally recent decision (Interlocutory Appeal No. 2086812-79.2021.8.26.0000, j. 06/24/2021), the TJ-SP also rejected the preliminary replacement of the index in commercial lease agreement.
Therefore, despite the trend to maintain the indexes provided in the agreements, this discussion is not close to ending, mainly due to the current uncertainty regarding to the economic effects of the pandemic.
[1] Interlocutory Appeal No. 0502848220218217000, judged on15/06/2021.
