By Isabela Moschini de Camargo Gurgel
With the advent of Law 13.874 on September 20th, 2019, Law on Economic Freedom, after the validity of the Provisional Measure 881/19 that covered the same theme, there were some changes concerning the disregard of legal personality for companies so the partners´s and directors´s assets can be reached.
Article 50 of the 2002 Civil Code anticipates that, in case of abuse of legal personality, characterized by purpose deviation or mixing of assets, the disregard could be recognized by the judge, and the obligations extended to the private assets that belong to the legal personality administrators and partners. Now, with the advent of the new Law, this article was altered to enable the patrimonial responsibility of everyone who was directly or indirectly benefited by the abuse.
Then, such measure brings more protection to the exercise of a business activity, given that it immunizes the partners who haven´t participated on the administration of the legal personality, and mainly that haven´t got any benefit from the abusive action.
So, the other paragraphs added to article 50 refer to illicit acts that shall be used for the disregard request, as for mixing of assets or purpose deviation. The article finalizes with paragraphs 3rd and 4th that determine the possibility of inverse disregard, that is, when the controller partner empties their personal assets and integrates it to the assets of other legal personalities. Also, the mere existence of an economic group doesn´t characterize authorization to disregard the legal personality of the companies involved.
The objective of the Law is to qualify which behaviors are objectively characterizing mixing of assets, while the simple request from one party will not be enough to disregard the legal personality. It will be necessary to prove repetitive acts and prove that administrators and partners received economic benefits.
Isabela Moschini de Camargo Gurgel, lawyer at Almeida Prado & Hoffmann Advogados Associados office.