Is it possible for husband / wife (couple) to enter into partnership agreement with each different?
* Raoni Sales de Barros
The reply is given in Article 977 of the Civil Code, which states the next: Husbands / wives are entitled to enter into a partnership agreement between themselves or a 3rd celebration, until they marry below a common neighborhood of property rule or below obligatory separation rule.
That is, the aim of part 977 of the Civil Code is to stop the pressured separation of a married partner from being a part of the identical firm below the rule of public communication, with none obstacle to a partnership agreement with a 3rd celebration. This is the place of the Supreme Court of Justice:
Internal interlocutory enchantment in particular enchantment. Cancel exercise. Marriage within the public dialogue of the product. Formation of an organization with a 3rd celebration by one of many spouses. Art. 977 of CC. Possibility. Nazir’s inside enchantment dismissed. 1. Explanation of artwork. 977 of the Civil Code makes it possible to conclude that there is no such thing as a authorized obstacle for a married particular person to take part alone in a partnership with a 3rd celebration below the rule of common consensual or obligatory separation, solely the participation of married individuals is restricted. Husband / wife below such rule in the identical society. Example 2. Excludes inside complaints. (STJ – AgInt no REsp: 1721600 CE 2018 / 0009984-8, Reporter: Minister Marco Orilio Belize, Trial Date: 09/30/2019, T3 – Third Pan, Release Date: 09/01 DJe)
However, there’s a doctrine opposite to the appliance of the mentioned article to firms restricted by shares and co-operatives, as they’re corporations that are ruled by sure guidelines and laws and wouldn’t have a contractual nature, as acknowledged in Article 94 of the Federal Justice Council III Conference on Commercial Law. See:
Statement 94: Prohibition of partnership between husbands in artwork. 977 of the Civil Code doesn’t apply to firms, restricted legal responsibility corporations and cooperatives. (https://www.cjf.jus.br/cjf/corregedoria-da-justica-federal/centro-de-estudos-judiciarios-1/publicacoes-1/jornadas-de-direito-comercial/enuncios-aprovados-iii -jdc-modified -2.pdf)
In the identical line of understanding, the National Department of Business Registration and Integration (DREI) Circular Letter SEI No. 6/2019 / DREI / SGD / SEDGG-ME despatched to all business boards, arguing that business sanctions. 977 of the Civil Code, doesn’t apply to firms or restricted legal responsibility corporations and cooperatives. See the hyperlink under: https://www.gov.br/economia/pt-br/assuntos/drei/legislacao/arquivos/oficios-circulares-drei/2019/Ofcioa_Circulara_SEIa_6a_2019a_DREIa_SGDa_
However, if the husband and wife had entered into a partnership agreement earlier than the Civil Code of 2002 got here into pressure, then there is no such thing as a prohibition within the Civil Code of 1916 due to the absence of authorized provisions, as made clear by the regulation:
Have to work. Registrar officer refusing registration of social change in society. Dividend of property arising out of divorce. Action recommended by Virago’s wife. Defendant who didn’t make his systematic illustration common, was declared absent. Partial judgment. The plaintiff’s inconsistency within the division of the enterprise firm shaped by the couple, on the premise of which it was established that de facto can be entitled to the cash correctly paid on the date of separation, noticed, in any case, the capital social proportion of his participation. Married events below the common neighborhood of property governance. Business partnership established earlier than the Civil Code of 2002 got here into pressure. Implementation of the Memorandum of Understanding within the III Civil Law Journey promulgated by the Federal Court, which maintains that the prohibition of partnership between married individuals below the rule of common communication or obligatory separation solely impacts the businesses concerned after the enactment of the 2002 Civil Code. Universal Communion which is vital for the communication of all current and future belongings of the partner besides these contained in paragraph 1,668 of CC / 02. The plaintiff is entitled to obtain 99% of the share capital of the defendant, whereas he’s entitled to obtain 1% of the share capital of the plaintiff. Sales of the enterprise group, nonetheless, haven’t been confirmed, and there’s no want to point out compensation in these data. Reformed sentence, dividing the share capital of the enterprise firm by 50% for each partner. The enchantment was granted partially. (TJ-SP – AC: 10113508620158260019 SP 1011350-86.2015.8.26.0019, Report: Ana Maria Baldy, Judgment Date: 10/08/2020, sixth Private Law, sixth Publication, D01 / D015.8.26.0019)
Therefore, though there’s a doctrinal understanding opposite to the present regulation (Section 977 of the Civil Code), married spouses can’t be a part of the identical firm below the rule of common communication and obligatory separation if the incorporation of the corporate enters into the next 2002 Civil Code.
* Rauni Sales de Barros is a lawyer who makes a speciality of enterprise regulation at PUC / GO and is a companion of Murillo Lobo e Advocados Associados.