05/05/2025
The exclusion of a partner for just cause in limited liability companies, especially when carried out extrajudicially, is a topic that generates many discussions among partners, often resulting in litigation. Applicable law provides formal requirements for such a measure to be valid, but a recent decision by the Third Panel of the Superior Court of Justice (STJ) adopted a more flexible approach in a specific case.
According to article 1,085 of the Brazilian Civil Code (Law No. 10,406/202), a partner may be excluded from a limited liability company, for just cause, upon resolution passed by the majority of the other partners, provided that this possibility is expressly provided for in the company’s articles of association. The law also requires the formal summoning of the accused partner, guaranteeing his right to a full defense.
Thus, the extrajudicial exclusion of a partner in a limited liability company depends on: (i) an express provision in the articles of association; (ii) occurrence of serious misconduct committed by the partner, being defined as that which results from acts of undeniable gravity likely to jeopardize the continuity of the company; (iii) a reasoned resolution by the majority of the partners (except in the case where there are only two partners in the company); and (iv) respect for the partner’s right of defense.
In a recent judgment, the Third Panel of the STJ considered valid the exclusion of a partner based on a document – referred to as a “bylaws” – signed by all partners, which provided for the possibility of extrajudicial exclusion, but had never been registered with the Board of Trade.
In the lawsuit filed by the excluded partner to annul the exclusion, he argued that the extrajudicial exclusion was not provided for in the company’s articles of association. However, the lower courts (first and second instances) dismissed the claim as unfounded. On appeal to STJ, the appellant reiterated the argument that the exclusion was null, as it was based on a document not registered with the Board of Trade and, therefore, could not replace the articles of association.
The reporting judge, Justice Ricardo Villas Bôas Cueva, recognized that, under the terms of article 1,085 of the Civil Code, the extrajudicial exclusion of a partner must be provided for in the articles of association. However, he reasoned that, in the specific case, the “bylaws” signed by all partners could be considered a contractual amendment, thus removing the invalidity arising from the lack of formal registration. He further stated that the “bylaws” could not be classified merely as a shareholders’ agreement, as it dealt with matters typical of the articles of association.
The decision innovates by recognizing that documents that formally amend or supplement the articles of association — even if not registered — may produce immediate internal effects among the partners, provided they are signed by all and meet the necessary legal formalities. The ruling reinforces the partners’ autonomy and upholds the principle of good faith in corporate relations. According to Minister Villas Bôas Cueva, the partners were aware of the possibility of extrajudicial exclusion as set forth in the “bylaws” signed by all and thus were able to assess the risks arising from this provision.
This STJ decision paves the way for greater recognition of agreements entered into among partners, provided they are formally valid and signed by all, even if not included in the articles of association registered with the Board of Trade. Nevertheless, this interpretation does not eliminate the need to observe applicable legal formalities. Careful drafting, formalization, and registration of a well-structured articles of association remain the best ways to prevent disputes and ensure the stability of corporate relations.
Authored by: Felipe Castro
