The 3rd Panel of the Superior Court of Justice (STJ) has recognized the validity of a contractual clause that provides for the limitation of liability of the contracting parties, provided that it is freely agreed.
It is therefore a matter of guaranteeing the exercise of the parties’ autonomy of will, which must be ensured as widely as possible, especially in business contracts, given that freedom of contract and the binding force of contracts are basic principles of contract theory.
It is worth noting that the Brazilian legal system expressly admits the possibility of including a limitation of liability clause in contracts, as a way of prefixing the amount of losses and damages that the parties may suffer, regardless of the determination of the damages actually incurred, in accordance with Article 410 of the Civil Code (CC).
The Supreme Court also held that recognition of the economic and technical superiority of one of the contracting parties is insufficient to render the limitation of liability clause null and void, requiring proof that the vulnerability of the other party is so significant as to prevent them from knowing and understanding the clause.
It should be noted that the compensatory penalty clause represents an advantage for both the creditor and the debtor, bringing more security to the contract, as it limits the amount to be paid in any future indemnity, and is not an option, but a requirement, except in the case of proven willful misconduct.
There is the possibility, however, that the contract expressly authorizes the collection of excess damages, in which case the amount fixed in the limitation clause will only be valid as a minimum indemnity, as authorized by article 416, sole paragraph of the CC.
Thus, we can conclude that the position adopted by the Justices represents a significant step forward in applying and enshrining the precepts of the country’s legal system, guaranteeing respect for the basic principles of Contract Theory, which is fundamental for the good social and economic development of our country.
We are attentive to new developments in case law and discussions in all areas of the Judiciary, in order to provide adequate and effective advice to our clients.
