Mário Conforti
Lawyer at Marcos Martins Advogados
In private law, especially in commercial relations, the general rule, derived from the Latin brocardo pacta sunt sevanda, is that the contract must be complied with by the parties or, as some prefer, has the force of law between the contracting parties.
However, it has long been understood that this rule should be relaxed, including in commercial relations. An example of this is the possibility of terminating or revising a contract in the event of a situation that creates such an imbalance in the relationship between the contracting parties that the fulfillment of the contract becomes excessively onerous for one of the parties.
As we have seen since the beginning of the novel coronavirus pandemic, the measures to contain the disease have had a direct impact on the economy. Various sectors of society are being drastically affected – and many companies have unfortunately gone out of business. In this troubled scenario, legal practitioners are being called upon to seek solutions aimed at rebalancing contractual relationships, in order to, whenever possible, maintain contracts and thus guarantee the continuity of economic activities, which generate jobs, distribute income, pay taxes, etc.
Recently, a case drew attention due to the application of the Theory of Imprediction as a result of the readjustment promoted by the operator of a collective health plan contracted by a company for the benefit of its employees. The Third Panel of the Superior Court of Justice (STJ) confirmed the São Paulo court’s understanding of the termination of the collective health plan contract due to the excessive onerousness that arose in the relationship as a result of the application of the minimum payment clause after the readjustment of the plan’s value.
When it contracted the group health plan, the company had 603 active beneficiaries. However, after the price of the plan was readjusted by the operator, 354 beneficiaries asked the employer to cancel the benefit because they could not afford the new costs. As a result, the collective health plan now has 249 active beneficiaries. The operator, in turn, applied the minimum payment clause provided for in the contract, whereby the employer of the group health plan had to pay the equivalent of 409 active beneficiaries. As there were only 249 active beneficiaries in the collective health plan contracted, the employer would, in practice, have to bear the costs of 160 non-existent beneficiaries, who would not require any payment from the operator.
It is worth noting that a clause providing for the charging of a minimum amount in a group health plan contract is valid. In the specific case, what was discussed was the imbalance caused by this minimum payment clause as a result of the significant withdrawal of beneficiaries from the collective health plan due to the increase applied by the operator.
According to the rapporteur of the case, Justice Nancy Andrighi , charging the minimum payment, without any consideration from the operator, would characterize a violation of the spirit of contractual justice that should prevail in contractual relations. In other words, the STJ held that the significant departure of beneficiaries due to the readjustment applied by the operator constituted an exceptional and unforeseeable situation that made the collective health plan contract excessively onerous for the contracting employer.
The question that arises, and which has not been settled by the courts, is whether the effects of the new coronavirus pandemic can constitute an extraordinary and unforeseeable situation that allows the state to intervene in private relations for the purposes of terminating or reviewing contracts.
Although the STJ judgment dealt with in this article does not constitute a judicial precedent (i.e. it does not have mandatory application by state courts and first instance judges), the result of this judgment opens up space for discussion on the possibility of terminating or reviewing the minimum payment clause in collective health plan contracts affected by an unforeseeable and extraordinary situation, such as the new coronavirus pandemic.
As in the specific case of the group health plan, unforeseeable and extraordinary situations affect all kinds of contracts, so that the application of the Theory of Imprediction or Excessive Onerosity finds application in the most varied hypotheses.
In anticipation of the increase in the search for justice due to the pandemic, including new lawsuits dealing with the termination or revision of contracts, the CNJ (National Council of Justice), at the end of last year, approved normative act 8.554 providing for regulation of the creation of new technological solutions for conciliation and mediation by virtual means (ODRs – Online Dispute Resolutions).
The CNJ ‘s measure is important and alternative dispute resolution methods such as conciliation and mediation can be used in cases of contractual disputes between two companies, as in the example of the case judged by the STJ and mentioned above. Encouraging consensual and negotiated solutions is important, even if, in practice, they are not enough to relieve the Judiciary.
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