The figure of the single-member limited liability company (“Sociedade Empresária Limitada Unipessoal”) was first introduced in our legal system with Law n. 13,974/2019 with the purpose of allowing a single person, whether natural or legal entity, to hold the total capital stock of a limited liability company. Previously, the corporate type that allowed only one partner with limited liability was the individual limited liability company (“Empresa de Responsabilidade Limitada” – EIRELI) which, unlike the single-member limited liability company, had certain restrictions set forth in our legislation, such as a minimum capital stock of one hundred times the minimum wage. Law 14,195/2021 determined the conversion of all EIRELI companies into single-member limited liability companies so that EIRELI companies no longer exist in our legal system and said restrictions no longer apply. For the single-member limited liability companies, the same general rules of the limited liability companies apply, among them, the legal protection that separates the company’s assets from the partner’s assets. Thus, observing the exceptions provided in our legislation, the partner is not liable with his personal assets for obligations incurred by the company before third parties.
Although it is clear in the legislation that the partner’s limited liability also applies to single-member limited liability companies, it was possible to observe the emergence of lawsuits in which creditors try to include the partners of single-member limited liability companies as defendants in execution actions of the companies.
The single-member limited liability companies cannot be mistaken with the figure of the individual entrepreneur (Empresário Individual), who has unlimited liability before third parties. The single-member limited liability companies have their own legal personality that is different from that of the partner, so that if the capital stock is fully paid up, the partner is liable before third parties only with the total value of the company’s quotas.
In a single-member limited liability company the partner shall only be personally liable if he approves matters that imply a legal infraction or disrespect to the company’s articles of association, or if he acts with abuse of the company’s legal personality, characterized by the deviation of purpose or by the confusion of assets. And even in these cases, it is mandatory to observe the specific procedure for disregarding the legal personality of the corporate entity provided for in the legislation for the investigation of acts and facts that may enable the eventual liability of the partner. Thus, creditors cannot be admitted to request the constriction of assets of the partner in the context of an execution action.
Recent decisions on the subject issued by the Private Law Chambers of the Court of Justice of São Paulo, in execution actions filed against single-member limited liability companies, have confirmed this understanding, and denied the requests made by creditors, thus ensuring the legal security expected by the partners, who choose to adopt the corporate type of a single-member limited liability company for the exercise of their business activities.
