Nathália Guedes Brum
Lawyer at Marcos Martins Advogados
A company has its own legal personality, with rights and obligations, and its assets are separate from those of its partners. Nevertheless, it has been common for the judiciary, with a view to enforcing executions, to disregard the isolation of assets and target the personal assets of the partners.
In this context, in order to prevent abuse or fraud against creditors, article 50 of the Civil Code[1] provides for the possibility of disregarding the legal personality, as an exceptional measure, subject to proof of abuse of the legal personality, which aims to reach the assets of the managing partners.
It is true that this measure, due to its exceptional nature, should only affect partners who use the autonomy of the legal entity for illicit purposes, with the aim of defrauding creditors.
The STJ has established that in order for the legal entity to be disregarded, the objective requirement of the debtor’s insufficient assets and the subjective requirement of misuse of purpose or confusion of assets are necessary[2].
The first objective requirement consists of the lack of assets in the company’s assets sufficient to satisfy the debt, i.e. the frustration of all attempts to obtain the credit.
The subjective requirement, on the other hand, requires proof of misuse of purpose, which consists of departing from the corporate purpose described in the memorandum of association with the aim of defrauding and abusing the law, or proof of asset confusion, characterized by the lack of separation between the assets of the partners and the legal entity, or even the assets of several legal entities.
It should be noted that only the default or demonstration of insolvency of the legal entity or the irregular dissolution of the company without the proper registration with the board of trade does not, in itself, give rise to the disregard of the legal personality. It is necessary to prove the abuse of the legal personality, either through the association, for example, of the irregular dissolution with other evidence, such as the emptying of the legal entity, configuring the deviation of personality with the aim of preventing the fulfillment of the agreed obligations, which will thus authorize the disregard of the legal personality.
Regulated by articles 133 et seq. of the Code of Civil Procedure, the incident of disregard is applicable at all stages of the knowledge process, in the enforcement of sentences and in execution based on extrajudicial executive titles, and will be instituted at the request of the party or the Public Prosecutor’s Office, when it is its responsibility to intervene in the process.
The specific legal requirements for its initiation must be observed, under penalty of rejection.
The initiation of the incident will suspend the proceedings, except if the disregard is requested in the initial petition, but in both cases the adversarial process must be observed, with the partner or legal entity being summoned to appear and request the appropriate evidence.
If the request for disregard of the legal personality is granted, the assets of the partner or administrator will be subject to execution, not limited to the company’s share. The sale or encumbrance of assets in fraud of execution will be ineffective in relation to the applicant.
It should be noted that this is an exceptional measure, which can only be adopted if one of the requirements set out in article 50 of the Civil Code, misuse of purpose or confusion of assets, is duly proven and the illicit and fraudulent intention to harm creditors or third parties is evidenced.
It should be clarified that these requirements do not apply to consumer relations, which are specifically regulated in article 28 of the Consumer Protection Code[3], and it is sufficient for there to be an abuse of rights, excess of power, infringement of the law, unlawful act or violation of the articles of association or articles of association, the occurrence of bankruptcy, insolvency, closure or inactivity of the legal entity caused by mismanagement. In other words, unlike civil law requirements, there is no need for fraud in consumer relations.
Marcos Martins Advogados is able to advise both creditors who, in the midst of an unsuccessful execution, seek satisfaction of their claim, and partners who fear the disregard of the company’s legal personality and the affectation of their personal assets, seeking the most appropriate alternative and ensuring full compliance with the legal requirements.
[1] Art. 50, CC. In the event of abuse of the legal personality, characterized by misuse of purpose, or confusion of assets, the judge may decide, at the request of the party, or of the Public Prosecutor’s Office when it is its responsibility to intervene in the proceedings, that the effects of certain and determined relations of obligations be extended to the private assets of the administrators or partners of the legal entity.
[2] Precedents: REsp 970.635-SP, DJe 1/12/2009; REsp 1.200.850-SP, DJe 22/11/2010, REsp 693.235-MT, DJe 30/11/2009 and REsp 1.141.447-SP, Rel. Min. Sidnei Beneti, judged on 8/2/2011.
[3] Art. 28, CDC. The judge may disregard a company’s legal personality when, to the detriment of the consumer, there is an abuse of rights, excess of power, infringement of the law, unlawful act or fact or violation of the articles of association. Disregard will also be carried out when there is bankruptcy, insolvency, closure or inactivity of the legal entity caused by poor management.
