6/7/2021
Article 1.053, caput, of the Civil Code establishes that, in the event of omission of the chapter where it is inserted, limited liability companies (sociedades limitadas) shall be subsidiarily governed by the rules applicable to the simple companies (sociedades simples). The same article, in its sole paragraph, establishes that the Articles of Association of a limited liability company may provide for the subsidiary regulation by Law No 6404/1976 (“Corporation Law”), applicable to stock corporations (sociedades anônimas).
The coexistence of the subsidiary application of the rules of simple companies to limited liability companies and the possibility of the supplementary regulation of limited liability companies by the Corporation Law may generate some doubts of interpretation in the event of Corporation Law’s lack of provision on a certain matter. This is what happens, for example, with the “unilateral withdrawal without cause “.
The doctrine diverges on the matter: some authors believe that in any limited liability company for an indefinite term the partners have the right to withdraw, regardless of motivation; on the other hand, other authors argue that the partners of limited liability company that opted for the supplementary application of the Corporation Law may not withdraw without cause, for lack of legal provision; there is also a third trend, which states that the partner’s conduct and the company’s situation must be analyzed when the withdrawal without cause occurs, respecting the principles of good faith and the social function of the contract.
In this scenario of doctrinal divergence, in a recent decision of the Brazilian Superior Court of Justice (Superior Tribunal de Justiça), taken in March of this year, the matter was decided (Special Appeal 1.839.078/SP, Third Panel, Reporting Justice Paulo de Tarso Sanseverino) as follows:
- The Federal Constitution expressly guarantees, in its article 5, XX, the fundamental right of association – thus, there is constitutionally guaranteed freedom not only to associate, but also no obligation to remain associated;
- The Federal Constitution, which is effective over the entire legal system, must serve as a parameter for the interpretation of infra-constitutional rules, among them those applicable to limited liability companies;
- The supplementary application of the Corporation Law, authorized by article 1,053 of the Civil Code, should only occur when compatible with the rules governing limited liability companies, which are essentially “partnerships” (sociedades de pessoas);
- The Civil Code establishes, in its article 1,089, that in the cases of omission of the Corporation Law its own rules will be applied;
- Since the omission of the Corporation Law regarding the withdrawal without cause of a partner is incompatible with the nature of the limited liability company as a “partnership” (sociedades de pessoas), it is necessary to recognize the possibility of applying article 1,029 of the Civil Code; and
- Even though ruled in a supplementary manner by the rules applicable to stock corporations, the partner of a limited liability company may unilaterally withdraw, without cause, from its corporate structure. Therefore, the supplementary application of the Corporation Law (which is silent on the matter of “withdrawal”) does not preclude the subsidiary application of the rules applicable to simple companies under the Civil Code.
Our Corporate team is available to provide more information and guidance on the subject.
Coauthors: Renata Castro Veloso and Marilia Polachini
