Priscilla Folgosi
Lawyer at Marcos Martins Advogados
The Marcos Martins Law Firm, defending the interests of one of its clients, obtained an important decision in the São Paulo State Court of Justice. A collection lawsuit (in the process of being enforced) was filed against a debtor company and, given the lack of assets capable of settling the debt, the first instance judge authorized the opening of an incident of Disregard of Legal Personality, requested by the plaintiff in order to reach the personal assets of the partner so that he could be held liable for the company’s debt.
On appeal, in defense of the foreclosed company, the firm was able to demonstrate that there was no element capable of supporting the claim made by the executor, especially since there were no elements capable of allowing the Disregard of Legal Personality, namely (i) abuse of legal personality; (ii) deviation from the business purpose; (iii) confusion of assets; (iv) fraud practiced by the partners to the detriment of credit interests; (v) irregular dissolution of the company.
In addition, the opposition pointed out that the company being foreclosed on has an active registration with the Federal Revenue Service and the mere failure of the attempt to seize assets is insufficient to prove abuse of the legal personality, being only strong evidence of an unfavorable financial situation.
The São Paulo Court of Justice adopted the allegations presented by the Defendant company on appeal and recognized that “the initiation of the legal personality disregard incident requires the demonstration of the fulfillment of the requirements set out in article 50 of the Civil Code, and it is necessary to demonstrate the abuse of the legal personality, characterized by the deviation of purpose (intentional acts of the partners in order to defraud third parties) or by the confusion of assets (lack of separation between the assets of the legal entity and those of the partners). ”, and there is no evidence in the case file of the existence of the necessary requirements for the incident of disregarding the legal personality to be established.
The understanding adopted by the São Paulo Court of Justice was strictly in line with current legislation and the case law of the Higher Courts, and deserves to be highlighted and acknowledged.
