Mário Conforti
Lawyer at Marcos Martins Advogados
In his book Introduction to Economics, Gregory Mankiw[1] teaches that “An incentive is something that induces a person to act, such as the prospect of punishment or reward”. In other words, human beings act through incentives.
Bringing this premise to the legal world, the loss of a case is an incentive not to litigate. In other words, the risk of being ordered to pay the opposing party’s lawyer’s fees serves as a disincentive (punishment) for the individual to analyze whether it is worth filing a lawsuit. So much so that the current Code of Civil Procedure introduced the figure of succumbence on appeal as a way of discouraging the filing of appeals just to delay the final and unappealable judgment. Today, the analysis of the opportunity cost of filing an appeal is a reality.
But what does this have to do with the Incident of Disregard of Legal Personality – IDPJ? Absolutely everything. Or rather, as we’ll see below, the absence of succumbence in the IDPJ serves as a stimulus to the indiscriminate use of this important institute.
As is well known, the disregard of legal personality is an important instrument for reversing situations of abuse of personality and fraud, in order to protect the creditor. In the light of objective good faith, it should be treated as an exception. In other words, not every situation can give rise to disregard, since the rule is autonomy between the company’s assets and those of its partner – a fundamental pillar for the development of the economy.
Even before the 2015 Code of Civil Procedure came into force, it was already “customary” for creditors frustrated by the lack of attachable assets of the debtor to request disregard of the legal personality. It’s practically a script in litigation: Bacenjud, Renajud, Infojud and, when all these attempts have been frustrated, requesting – or at least considering – the disregard of the legal personality, especially in situations where the legal entity debtor has closed down its activities irregularly.
With the advent of the Code of Civil Procedure, the request for disregard of legal personality became incidental – except when the request for disregard of legal personality is made in the initial petition itself (which is rare). Well, the creditor therefore needs to request that the incident be opened in order for the debtor’s request for disregard of legal personality to be considered. A process is created that is attached to the main one.
Once the incident has been opened, the partner or legal entity (in the case of reverse disregard) will be summoned to defend themselves and request the production of any evidence they deem appropriate. Therefore, those who are the object of the request for disregard of the legal personality will have to appoint a lawyer and submit to the evidentiary instruction so that, in the end, they will know whether or not they will be included in the action as debtors together with the entity whose personality has been disregarded.
The IDPJ is time-consuming because, in addition to the evidence, there is an interlocutory appeal against the decision that resolves it and all the other appeals provided for in our lavish procedural legislation. In other words, litigating in the legal personality disregard incident is the same as defending yourself in a lawsuit.
In other words, the establishment of the legal personality disregard incident imposes consequences on those who are the object of the request, not only emotional consequences (expenditure of energy and time inherent in litigation), but also financial consequences (hiring a lawyer, paying costs and procedural expenses, obtaining evidence, etc.), as well as moving the judicial machine.
Despite this, for the creditor who requests – i.e. caused – the disregard of the legal personality, there are no consequences if the incident is rejected. This is because the prevailing jurisprudential understanding is that there is no condemnation to pay attorney’s fees in the incident of disregarding the legal personality.
An example of this jurisprudence is the recent decision of the Superior Court of Justice in Special Appeal No. 1.845.536/SC, which ruled that
“ The unacceptability of the condemnation of the onus of succumbence arises from the absence of an exceptional legal provision, and it is irrelevant to determine who caused or was succumbent in the final judgment of the incident.”[2].
Denying success in the IDPJ due to the lack of a legal provision is unsupportable, since other procedural incidents provide for the award of success fees, which is even recognized by the STJ itself – for example: the authorization of credit, the pre-enforcement exception.
In reality, this understanding is contrary to the effort to avoid and reduce litigation in Brazil, which was sought by the legislator of the current Code of Civil Procedure and is defended by the STJ.
The judgment mentioned above is an example of what we want to demonstrate, since the basis of the request for disregard of the legal personality in that specific case was due to the irregular closure of the debtor company, a matter which the STJ itself has already understood does not, in itself, give rise to disregard of the legal personality. If there were a loss, the creditor would certainly think twice before filing an IDPJ based on the irregular closure of the debtor.
In addition to the purely procedural discussions, the imposition of a success fee in the IDPJ has an economic basis, namely: to discourage the excessive filing of IDPJs, which in turn will contribute to a reduction in the number of appeals that reach the State Courts and the STJ (saving time and resources).
Marcos Martins Advogados is aware of this issue and is prepared to provide qualified legal advice in defense of its clients’ interests.
Questions? Talk to our lawyers and receive guidance.
[1] MANKIW, N. Gregory. Introduction to Economics. São Paulo, SP: Cengage, 2019, p. 6.
[2] STJ -REsp 1.845.536/SC, rel. minister Nancy Andrighi, rel. for judgment minister Marco Aurélio Bellizze, 3rd class, judged on 26.05.20, DJe 09.06.20.
