Responsibility for Debts Cannot Fall on Those Who Have No Legal Ties to the Debtor Company

In a recent decision, the STJ (Superior Court of Justice) understood that the institute of disregard of the legal personality (art. 50 of the Civil Code of 2002) cannot be used to confer patrimonial liability on anyone who does not have any type of legal link with the debtor company, even when there is an allegation of patrimonial confusion or patrimonial misappropriation, due to suspicion of fraud against creditors.

In the case analyzed by the STJ, children of the partners of the debtor company ended up being involved in legal disputes with creditors of the debtor company, under the argument that the parents had benefited the children with donations of properties and money after the company incurred the debt.

In other words, the creditors alleged that the partners disposed of personal assets – not belonging to the company – through donations to their children after the company’s insolvency, with the aim of defrauding creditors.

When analyzing the children’s appeals, the Superior Court of Justice (STJ) considered that art. 50 of the Civil Code of 2000, although it allows for the liability of partners for the obligations of their respective companies, of companies for the obligations of partners, and of companies for the obligations of other legal entities in the same economic group, does not contemplate the possibility of broad interpretation, that is, it does not allow the application of disregard to hold children liable for the obligations of their parents, especially when the children are not even part of the corporate structure of the debtor company.

In the decision now commented, the STJ understood that any transfer of assets in fraud against runners would imply the adoption of the Pauliana action.

This is an important decision that will serve to guide the Courts of Second Instance in similar cases, precisely to avoid excessively harsh decisions on people related to partners of companies in a situation of insolvency, but without any type of participation in them, and who are often involved in the legal imbroglio due to disregard of the legal personality, under the pretext that the mere unavailability of assets does not cause harm.