By Paulo Guilherme de Mendonça Lopes and Alexandre Paranhos, published in the International Law Office (ILO) platform
In September 2023, the Superior Court of Justice (STJ) issued a significant ruling related to a debt enforcement against shareholders of a company under reorganisation, under Brazilian Law No. 11.101/2005.
The decision was reached after a discussion on whether a Brazilian corporation that is under the reorganisation regime and stay period might have its shareholders deemed responsible for a company’s debt under the application of the “disregard theory”.
In this ruling, the STJ established that the reorganisation regime does not exempt the company’ shareholder from potential enforcement under the “disregard theory”, since the eventual constraint won’t be laid upon the company.
The 1916 Brazilian Civil Code set out the concept of corporate personality into Brazil’s legal system. However, it wasn’t until 1919 that Decree Number 3.708/19 brought the concept of the limited liability for non-natural persons, such as corporations. This decree stated that partners would only be held liable for debts up to the total amount of their shares of the company’s capital.
In 2002, Brazil issued a new Civil Code implementing several noteworthy changes, one of which pertained to the introduction of the “disregard theory”,(1) aimed at preventing fraud or abuse through the misuse of non-natural entities, after years of legal discussions and rulings around two theories for piercing the “corporate veil” (the “major” and “minor” theories).
While the major theory for disregard is related to the review of the partners’ behavior and the practice of fraud, the minor theory admitted the disregard of the corporation, to reach its partners when an entity fails to meet its financial obligations, under certain conditions and legal requirements before the Brazilian Consumer Code.
This minor theory emphasises the practical effectiveness of legal proceedings over the existence of fraud, abuse or confusion.(2)
The controversy surrounding the special appeal(3) was related to the application of minor theory to disregard a corporation and hold its shareholders accountable, and whether the fact that the corporation is under reorganisation before Law No. 11.101/2005 (being granted the stay period of 180 days) may deter the application.
The STJ reviewed the case law on REsp No. 279.273/SP, by which it was ruled that no proof of fraud or abuse was required for the purpose of minor theory. Under the Brazilian Consumer Code, the supplier’s default was sufficient for the consumer file the disregard claim to demonstrate the supplier’s insolvency, which is an implicit prerequisite, and the fact that the legal personality poses an obstacle to the reimbursement of damages, such as the absence of assets owned by the debtor entity.
The STJ also considered that the type of the corporation, under Brazilian Law, was irrelevant for the minor theory. In case law AREsp No. 1.811.324/DF, the STJ reasoned that the corporate structure of limited companies isn’t an impediment to disregarding the entity in accordance with section 28 of the Brazilian Consumer Code.
The case reviewed in that instance was different from said case law. The case was related to a company that was under the protection of Law No. 11.101/2005 and was under a reorganisation and stay period. That was because Law No. 11.101/2005 was recently updated by Law No. 14.112/2020 that added section 6-C to it, stating that it is not allowed to impose or extend liability to third parties due to the mere non-performance of obligations by the bankrupt or debtor under judicial reorganization, except the cases with related guarantees (eg, mortgage or pledge) or otherwise stated in Law No. 11.101/2005.
However, the STJ held that section 6-C of Law No. 11.101/2005 was not incompatible or opposite to section 28 of the Brazilian Consumer Code and minor theory. On the contrary, section 28 could still be claimed.
The conclusion reached by the STJ was the following.
Although section 28 can still be applied against companies despite their nature under Brazilian Law, the liability must be limited to those shareholders, officers and managers that held effective control over the company.
Law No. 11.101/2005 intends to enable the reorganisation of the debtor, while the minor theory and section 28 of the Brazilian Consumer Code does not aim for debtors or their assets. It is aimed at those who held effective control over the company.
The potential liability of shareholders, officers, managers and even members of board of directors in an extremely relevant issue in Brazilian litigation currently. The relevance of the ruling under discussion here aims to alert the impossibility to claim that section 6-C of Law No. 11.101/2005 could “impair” claims under section 28 of the Brazilian Consumer Code.
STJ refereed that these claims should be reviewed on a case-by-case basis, but the liability arising from claims cannot be indiscriminately transferred to shareholders, officers, managers and even members of board of directors that do not hold effective control over the company.
(1) Under section 50.
(2) Confusion is often regarded as the misuse of corporate assets in the partners own behalf.
(3) REsp No. 2034442.