The Incident of Disregarding Legal Personality (IDPJ) emerges as an important tool in Brazilian law, allowing, in specific situations, the creditor to seek satisfaction of their credit directly from the personal assets of the partners or administrators of a company. This measure is adopted when it is proven that there has been an abuse of power or fraudulent maneuvers by those managing the company.

Generally, the partners of corporations or limited liability companies have their responsibilities restricted to the subscribed share capital, thereby preserving their personal assets. However, in certain cases, legal personality may be misused, serving as an instrument for committing fraud or abuse. In this context, the Brazilian legal system offers the IDPJ as a solution, removing the protection of the managers’ assets to ensure that creditors are compensated.

The liability of partners or administrators through the IDPJ is based on two fundamental theories: the major theory and the minor theory. The major theory, widely adopted in civil-business relations, requires proof of purpose deviation or asset confusion. In contrast, the minor theory, mainly applied in consumer rights or environmental crimes, allows for the disregarding of legal personality based solely on the non-fulfillment of obligations, without the need to prove fraud or abuse.

In the civil-business context, the Civil Code, in its Article 50, prioritizes the major theory. Thus, to initiate the IDPJ, it is necessary to demonstrate that there was an abusive use of legal personality, either to defraud creditors or due to the confusion between the company’s assets and those of its managers.

The Superior Court of Justice (STJ), in its rulings, reinforces this view by deciding that the mere irregular dissolution of the company or the lack of resources to settle debts are not, in themselves, sufficient grounds to apply the IDPJ. It is essential to clearly prove that there was bad faith or improper use of the company’s legal structure.

In the fiscal realm, although the National Tax Code and the Tax Enforcement Law do not expressly provide for the IDPJ, it can be used when discussing the liability of third parties in tax enforcement actions. The initiation of the incident is essential to ensure due process and the right to be heard, preventing the redirection of tax collection based on mere assumptions, such as the alleged formation of an economic group.

At Tasso Pereira & Massa Advogados, we act decisively in credit recovery, using all legal means to achieve the best results for our clients. The Incident of Disregarding Legal Personality (IDPJ) is a tool that can be strategically employed when necessary, always aiming to reach the personal assets of partners and administrators involved in fraud or abuse.

If you take a look at the Brazilian Civil Code, at the very beginning of Title V we find article 421, which deals with the social function of contracts. This principle inaugurates the discipline of contracts in general, and its importance goes far beyond a simple abstract value. But what is the practical relevance of this principle? And how does it affect contractual relations on a daily basis? To understand this, we need to revisit another fundamental principle in contract law: that of relativity.

The principle of the relativity of contracts, which has nothing to do with Einstein, refers to the idea that the effects of a contract concern only the parties who entered into it, protecting third parties from being affected by obligations to which they did not consent. This logic, widely accepted in classic contract law, aims to guarantee legal certainty for the parties involved in an agreement.

However, the social function of contracts appears to be an important exception to this rule. What does this mean in practice? It means that although a contract may be valid between the parties and even respect principles such as objective good faith, it cannot cause harm to society or third parties. Thus, we can say that the social function of contracts “relativizes relativity”. A well-structured contract between the parties can, for example, be harmful to the community or to certain public interests.

Imagine this: two competing companies enter into a contract to form an oligopoly. Although this agreement may comply with the rules of good faith and contractual balance between the parties, it can cause serious damage to competition and consumers, by raising prices and limiting options in the market. Here, the Administrative Council for Economic Defense (CADE) has the role of intervening, ensuring that the social function of the contract prevails for the benefit of the community.

Another example would be a contract between two companies which, when developing a project, causes environmental damage. In this case, even if the parties are satisfied with the agreement, society can intervene to annul clauses that violate the social function, in defense of the environment.

Enunciation 431 of the Federal Justice Council (CJF) illustrates this dynamic by pointing out that contractual clauses that disregard the social function can be invalidated. In addition, Enunciation 23 of the same body provides examples of situations in which the social function of contracts is violated: one of them involves damage to diffuse interests (such as the environment), and the other, the violation of individual interests linked to the dignity of the human person.

An emblematic case that illustrates the violation of human dignity was the removal of a segment from Rede TV’s “João Kléber” program, where the “pranks” ended up being considered abusive and harmful, hurting the dignity of those involved.

It is also worth mentioning Statement 21, which protects the external protection of credit. In this context, third parties who were not party to a contract, but who suffered damage as a result of it (such as in cases of consumer accidents), can be equated with direct consumers on the basis of the social function of contracts.

In today’s scenario, in which legal relationships are increasingly dynamic and complex, a poorly drafted contract or an inappropriate clause can have serious consequences in the future. That’s why it’s essential never to sign a contract without first consulting a lawyer you trust.

Tasso Pereira & Massa Advogados is currently sponsoring a lawsuit whose central thesis is precisely the application of the social function of contracts in a direct billing relationship between the subcontracted provider and the service taker. Understanding the scope and meaning of the law is the duty of every citizen, and this is one of our institutional pillars: fighting for justice and defending the interests of society.

The judicialization of health in Brazil has been a growing reality, and one of the central points of this discussion involves the granting of medications through the judiciary. Recently, the Supreme Federal Court (STF) took new steps by resuming the judgment of two important cases related to the provision of medications that are not incorporated into the Unified Health System (SUS). These decisions are being closely monitored, as they will directly impact thousands of ongoing lawsuits, as well as new demands that may arise.

The STF is discussing two appeals with general repercussions that could change the current scenario regarding the judicial granting of medications. The first, Theme 1234, analyzes the jurisdiction of the Federal Court in cases related to medications registered with Anvisa but not yet available in the SUS. The second, Theme 6, involves the state’s responsibility to provide expensive medications to patients with severe illnesses who cannot afford them, even when these medications are not incorporated into the SUS.

The decisions emerging from these judgments may bring a new perspective on which medications the state must provide and which public agencies will be responsible for the funding. The impact goes beyond individual demands, influencing how public resources are allocated in the health sector. Furthermore, there is a discussion about creating a national platform to unify information on judicial demands, facilitating communication between federal entities and patients, thereby improving control and transparency in the processes.

These judgments are particularly important because they involve repetitive appeals. In other words, the established theses will be applied to all similar cases, standardizing the treatment of these issues. This could bring more legal security and predictability for public managers and legal practitioners.

The STF is in a key position to define the directions of the judicialization of health in Brazil, especially regarding the provision of medications not available in the SUS. At Tasso Pereira Massa Advogados, we have an experienced team in health law that can assist you with solutions related to the rights and obligations of the state, operators, doctors, and consumers.

On September 11, 2024, the 1st Section of the Superior Court of Justice (STJ) decided, in repetitive appeals (Theme 1.226), that Stock Option Plans, popularly known as Stock Options, are of a mercantile nature, and not remunerative. This decision is important because it directly affects the way in which personal income tax (IRPF) should be applied to these plans.

With this new understanding, the STJ ruled that IRPF will only be levied when the employee sells the shares and there is a capital gain. Thus, the tax will not be levied when the purchase option is exercised, which generates tax relief for the beneficiaries of these plans.

Although the focus of the decision was the IRPF, it also has indirect effects on employers’ social security contributions. By confirming that stock options are not remuneration, the STJ opens the way for companies to review the payment of social security contributions made over the last five years, where applicable.

This decision represents a significant opportunity for companies that offer stock options to their executives. Depending on the format and conditions of the plan, they can seek a refund of the amounts paid as social contributions on these benefits.

Our team here at Tasso Pereira & Massa Advogados is following this issue closely and is ready to help companies analyze their stock options plans, including carrying out surveys on the amounts involved. If your company offers this type of benefit, it is essential to review your policies and take advantage of the opportunities brought about by this change in case law.

Recently, the Superior Labor Court (TST), through the Special Section I for Individual Disputes (SBDI-I), made an important ruling that directly impacts companies that pay their salespeople commissions on installment sales. The decision clarified a recurring issue: the calculation basis for commissions on installment operations and the inclusion of interest and financial charges.

The controversy revolves around whether the interest and financial charges resulting from installment payments should be considered in the amount used to calculate the commissions for salespeople. Historically, the legislation regulating the profession of salesperson, particularly Law No. 3,207/1957, does not distinguish between cash and installment sales when calculating commissions. However, the issue has generated different interpretations in the courts until the recent position of the TST.

The SBDI-I ruling established that, as a rule, the commissions due to the salesperson should be calculated based on the total sale amount, including interest and financial charges applied to installment sales. This decision reinforces the importance of ensuring that the salesperson is compensated for the total value of the transaction, preventing any undue reduction in commission.

According to the case rapporteur, Minister Hugo Carlos Scheuermann, excluding interest and financial charges from the commission calculation transfers the economic risk of the transaction to the salesperson, which is prohibited by the principle of alterity, as outlined in the Consolidation of Labor Laws (CLT). Thus, it was determined that the salesperson has the right to a commission based on the full sale amount, without distinction between cash price and financed value.

On the other hand, it was acknowledged that the parties may establish a different rule by express agreement. In other words, if there is a pact between employer and employee, it can be defined that the commissions will only apply to the cash value of the merchandise. However, in the absence of such an agreement, the general rule is that the commission should be calculated based on the total sale amount on credit, including financial charges.

This decision has direct implications for companies that use commission-based compensation and reinforces the need for a review of internal policies. Companies that have not yet addressed this issue clearly in their contracts or collective agreements should do so to avoid potential labor disputes in the future. The ruling also emphasizes the importance of always complying with labor legislation, ensuring that employees’ rights are protected and that compensation rules are transparent and agreed upon in advance.

Here at Tasso Pereira Massa Advogados, we are attentive to these changes and prepared to assist companies seeking to review their commission policies. Understanding the nuances of these decisions and applying them appropriately is essential to minimizing litigation risks and promoting a fair and balanced working relationship.

Imagine that you filed a lawsuit, requesting a judgment of R$ 100,000 against the defendant. The judge rules in your favor, condemning the defendant to pay the full amount. However, the defendant, knowing they intend to appeal the decision through all available instances—which can take months or even years—decides to take a strategic action: they deposit the full amount into a judicial account linked to the case while appealing the sentence.

But what advantage does this provide the defendant? By making the judicial deposit, they ensure that the amount is available for future enforcement while also preventing 1% monthly interest from accruing on the debt from the moment of the deposit. For the defendant, this offers financial relief since, although the amount remains in a judicial account managed by a financial institution, it will only be adjusted by monetary correction, which is generally much lower than the 1% monthly interest.

However, this strategy significantly impacts the creditor, who sees their credit guaranteed but cannot withdraw the funds until the appeals are resolved. The money remains idle, generating only monetary correction, and the creditor misses the opportunity to earn 1% monthly interest during the time the defendant appeals the decision.

This was the case until recently when the Superior Court of Justice (STJ) changed its stance on the issue with Topic 677. Prior to this change, the judicial deposit blocked the accrual of interest on the deposited amount. Now, the STJ has ruled that even with the deposit, the 1% monthly interest continues to accrue on the total amount. This change directly affects both debtors and creditors in legal actions.

For the debtor, the advantage of halting interest by making the judicial deposit effectively disappears. Even if they deposit the full amount, the 1% interest continues to be charged until the final resolution of the process. Conversely, for the creditor, this STJ decision is favorable as it ensures they will receive compensation through interest, even if the amount is held in judicial deposit.

Now the question arises: what about debtors who made the deposit before this change in understanding? Should they be penalized with the retroactive charging of interest? Fortunately, the answer is no. The STJ has clarified that the new interpretation of Topic 677 cannot have retroactive effects, preserving legal certainty. Debtors who deposited amounts before the change, based on the expectation that interest would not be applied, remain protected by this legitimate expectation.

With the recent shift in the STJ’s understanding, the way debtors and creditors approach this issue has also evolved. In a dynamic legal landscape, it is crucial to be well-informed to avoid unpleasant surprises and effectively protect your interests.

If you or your business are facing similar situations, do not hesitate to contact us. Tasso Pereira Massa Advogados is prepared to defend your interests and stay updated with changes in jurisprudence and legislation.

The hiring of doctors through companies (legal entities), known as “pejotização,” has become common in hospitals and clinics in Brazil. However, this practice has sparked debates, especially when doctors seek recognition of an employment relationship in labor lawsuits. So, what are the rights and obligations of each party? How can we ensure that both the hospital and the doctor are protected?

The discussion on “pejotização” gained relevance with recent decisions from the Supreme Federal Court (STF), such as in the judgment of ADPF No. 324 and RE No. 958.252 (General Repercussion Theme 725). In these cases, the STF confirmed the legality of outsourcing and other forms of service contracts, including the “pejotização” of professionals. The Brazilian Supreme Court recognized that outsourcing, when conducted legitimately, is fully valid and compatible with the constitutional principles of free initiative and the appreciation of work.

Thus, the hiring of doctors through legal entities, besides being legal, does not constitute the precarization of work. The doctor maintains their professional autonomy, organizing their own schedule and making clinical decisions without direct interference from the hospital. This autonomy is fundamental to ensure that the doctor has the freedom to operate, preserving their technical and managerial independence.

For the service provision relationship to function properly, it is important that both the hospital and the doctor follow certain guidelines. The contract must be clear, outlining the rights and duties of each party, without inserting elements typical of an employment relationship, such as strict control of hours or hierarchical subordination. Additionally, the hospital must guarantee the doctor’s autonomy, avoiding any confusion of their role with that of an employee.

On the other hand, the doctor must also be aware of the benefits and responsibilities when opting for this form of hiring. By providing services through a legal entity, they enjoy tax advantages and greater freedom to manage their career, but do not receive labor benefits such as vacation or a 13th salary. This choice should be made consciously, considering the specifics of the relationship.

In recent years, many doctors have turned to the courts seeking recognition of an employment relationship, claiming that “pejotização” is a way to disguise a work relationship. However, the latest decisions from the STF make it clear that, when legal parameters are respected, “pejotização” is legitimate. Therefore, both the hospital and the doctor should be well advised to avoid unnecessary risks.

“Pejotização” is a valid and efficient practice, provided it is conducted transparently and within the limits of the law. With adequate legal advice, hospitals and doctors can benefit from this professional relationship model without exposing themselves to unnecessary labor lawsuits. At Tasso Pereira Massa Advogados, we have extensive experience advising both hospitals and doctors, ensuring that their rights are fully protected and their obligations clearly defined.