The term partial dissolution encompasses certain situations in which a person ceases to be a member of the company. Examples include liquidation of a partner’s shares due to death or exclusion from the company.
In such situations, there is often no consensus on the value of the terminated share, especially because interests are conflicting. The person leaving the company wants to receive the highest possible value, while the company wants to preserve its resources to continue its activities.
At this point, the rules set out in the Articles of Association are extremely important, as they will define how the value of the extinguished share is determined and the payment method.
If the Articles of Association do not define anything in this regard, the rules set forth in the Civil Code will be applied, which, in turn, require the preparation of a Determination Balance Sheet on the date of the event that gives rise to the payment of the quotas, and its payment within 90 days.
Just to give you an idea, the Balance Sheet assesses tangible and intangible assets and rights at their exit price, and the same applies to liabilities. The value thus determined is usually higher than the equity determined by accounting.
Therefore, the ideal is to revisit the Articles of Association in times of peace, and define how to determine the rules if a situation like the one above occurs, as it will be the rule defined in the Articles of Association that will be applied.
In similar cases, the STJ (Superior Court of Justice) has repeatedly maintained the application of the rule contained in the Articles of Association for the calculation and payment of corporate assets in cases of partial dissolution, thus removing the calculation based on the rule provided for in the law to the detriment of the contract, favoring the binding force of contracts.
Therefore, to avoid surprises and questions, it is best to review the articles of association when things are going well.
