The 3rd Panel of the Superior Court of Justice decided that the general rules of Civil Law can regulate term in proceedings related to social contracts. Thus, the collegiate concluded that the limitation period regarding a request for annulment or deconstitution of amendments to a social contract, in case the contractual nature was recognized, is four years, governed by article 178 of the Civil Code of 1916, in force when the changes were made.

According to the partners who joined the action, a series of changes were made to the company’s social contract registered with the Board of Trade between 1994 and 1996. The irregularities would have erroneously modified the percentage of participation of the members, due to monetary updating .

The representation of the member already dead, accused of having committed irregularities, argued that the alteration concerning quotas is justified by the reinstatement of the participation of one of the partners, who did not complete the payment of promised property.

According to the case file, the lawsuit was filed in August 2001. The first-instance court considered the request prescribed in accordance with Article 286 of the SA Law, that is, it adopted a two-year term. In the grounds of appeal, the partners argued that there was no limitation because the article 442 of the Commercial Code, with a 20 year term, would apply to the situation.

The rapporteur, Nancy Andrighi, explained that the SA Law deals with the term referring to the annulment of decisions taken at a general or special meeting, which is not the case. The 20-year period provided for in the Commercial Code, which deals specifically with the claim related to non-compliance with commercial obligations entered into by a public or private deed per company, is also not applicable.

“Since there is no evidence in the documents before the Court that the contractual amendments which the applicants intend to disconstitute have arisen from decisions taken in some kind of conclave of shareholders, the two-year limitation period of Article 286 of the LSA is not applicable to the hypothesis “, Explained the rapporteur.

As for the rules laid down in the Commercial Code, the minister explained that they do not fit in the situation under analysis, because there is no discussion about commercial obligations, “since this is a claim of invalidation of changes promoted in a social contract.”

In view of this analysis, the 3rd Panel of the STJ concluded that, in this case, article 178, paragraph 9, V, of the Civil Code of 1916 applies, which establishes that the action to annul or terminate contracts it is a request for regularization of corporate changes in which an error or simulation occurred.

“Although the social contract is a very peculiar kind of contract, the application of the general rules of civil law to its discipline can not be ruled out – even if it is extremely doubtful that there is no incidence of any rule regarding training, default and the termination of contracts in general – especially when there is, as in the case, the absence of specific legal provision on the issue at issue, “concluded Minister Nancy Andrighi. With information from the Press Office of the STJ.