In this Corporate Law newsletter, you will find:
- Minimum Stay Clause and Refund of Amounts Do Not Create an Automatically Enforceable Obligation
- Loan Between Partners and Impossibility of Offsetting Against Equity Interests
- Call Option on Quotas and Power of Attorney Coupled with an Interest
- Former Partner’s Liability Towards Creditors Cannot Be Waived by Internal Agreement
- Failure to Pay-In Capital Bars Calculation of Equity Interests
1. Minimum Stay Clause and Refund of Amounts Do Not Create an Automatically Enforceable Obligation
The 1st Reserved Chamber of Corporate Law of the São Paulo Court of Justice (TJSP), in Appeal No. 1086535-32.2025.8.26.0100 (March 2026), analyzed whether an obligation arising from a minimum stay clause in a limited liability company, combined with the refund of amounts paid to a withdrawing partner, was enforceable.
The company sought to enforce a contract requiring the partner to remain for 48 months, under penalty of refunding alleged “dividends.” The enforcement action was dismissed for lack of an enforceable title, and the appellate court upheld this decision.
The court held that the amounts paid were not dividends, as they were monthly, unrelated to profit distribution, and described as incentives or bonuses, resembling management fees (pró-labore). It also noted inconsistencies in the clause, which referred to subscription of quotas, while the partner had joined through an assignment of existing quotas, undermining the certainty and liquidity required for direct enforcement.
Finally, the TJSP stressed that clauses requiring full refund of amounts upon withdrawal may conflict with the rules governing limited liability companies, particularly the prohibition on excluding participation in profits (Article 1,008 of the Civil Code). While minimum stay clauses are legitimate, the decision underscores the need for precise drafting, proportional penalties, and caution when using enforcement proceedings for obligations that require prior legal interpretation.
2. Loan Between Partners and Impossibility of Offsetting Against Equity Interests
The 18th Civil Chamber of the Rio de Janeiro Court of Justice (TJRJ), in Appeal No. 0253905-93.2021.8.19.0001 (March 2026), addressed whether a debt arising from a loan agreement between partners could be offset against alleged equity interests.
The plaintiff sought payment under a loan agreement executed between partners to fund capital contributions, which was admittedly unpaid. The defendant argued that the debt should be offset against equity interests arising from her exclusion and the absorption of her quotas, claiming that the corporate transaction implied tacit settlement or unjust enrichment.
The court rejected this argument, holding that the loan creates a personal obligation between partners, even if the funds were used by the company. Corporate events—such as exclusion of a partner or quota reorganization—do not imply tacit settlement nor affect the enforceability of the debt, nor do they extend liability to third parties.
The TJRJ further noted that legal set-off requires liquid, certain, and enforceable credits (Article 368 of the Civil Code), which is not the case for equity interests that have not yet been calculated. As they depend on accounting determinations, such interests are uncertain and disputed, making set-off with a liquid loan obligation impossible. The decision reinforces the autonomy of contractual obligations and the inadmissibility of conditioning personal obligations on future, uncertain corporate events.
3. Call Option on Quotas and Power of Attorney Coupled with an Interest: Legal Certainty and Economic Effects
The 2nd Reserved Chamber of Corporate Law of the TJSP, in Appeal No. 1121229-61.2024.8.26.0100 (March 2026), examined the validity of an amendment formalizing a partner’s withdrawal based on a call option agreement combined with a power of attorney coupled with an interest. The decision reaffirms the legal certainty of these instruments, widely used in corporate arrangements.
The partner joined the company through a quota assignment and, on the same date, executed a call option in favor of the company, granting it the right to acquire her entire interest at any time. She also granted a power of attorney coupled with an interest, authorizing the company to transfer her quotas and execute necessary amendments. When the option was exercised, the company formalized her withdrawal.
The plaintiff alleged nullity due to revocation of the power of attorney, conflict of interest, and formal irregularities. The TJSP upheld the transaction, noting that under Article 685 of the Civil Code, a power of attorney coupled with an interest is irrevocable, non-retractable, and has a translative nature, allowing the attorney to act in its own interest, eliminating conflict concerns. It also deemed irrelevant that the managing partner signed the amendment on his own behalf, as the articles granted him sufficient authority.
In a related case (Appeal No. 1126727-12.2022.8.26.0100), the TJSP validated a consignation in payment filed by the company to deposit the purchase price after the former partner refused to accept it. The court held that the consignation discharged the obligation and that, once the option was validly exercised at a pre-agreed price, there was no basis to revisit the withdrawal, calculate equity interests, or recharacterize the transaction as abusive exclusion or partial dissolution.
These rulings reinforce party autonomy, contractual enforceability, and legal certainty in common corporate structures, such as call options linked to powers of attorney coupled with an interest, which are essential for investments and corporate reorganizations.
4. Former Partner’s Liability Towards Creditors Cannot Be Waived by Internal Agreement
The Minas Gerais Court of Justice (TJMG), in Interlocutory Appeal No. 1.0000.21.080426-6/002 (February 2026), considered whether a former partner could be removed from enforcement proceedings after a limited liability company was dissolved under an agreement assigning all assets and liabilities to one partner.
The former partner argued that the internal agreement released him from liability, seeking removal from the case and limitation of liability to his quota value. The TJMG rejected this, holding that such agreements are effective only internally and cannot be asserted against third-party creditors. The court also noted the absence of any prior judicial decision expressly releasing the former partner from liability.
The ruling emphasizes that internal arrangements do not alter a creditor’s rights, and enforcement may proceed against all liable parties until a final judicial determination states otherwise.
5. Failure to Pay-In Capital Bars Calculation of Equity Interests
The 2nd Reserved Chamber of Corporate Law of the TJSP, in Appeal No. 1078032-61.2021.8.26.0100 (March 2026), analyzed a claim for partial dissolution combined with calculation of equity interests by a withdrawing partner who had not paid in his capital contribution.
The court held that ownership of economic rights in a limited liability company requires actual payment of the capital contribution, as per Article 1,055, §2 of the Civil Code. The plaintiff was treated as a defaulting partner (sócio remisso) under Article 1,058, and thus had no right to equity calculation upon withdrawal.
The decision underscores that capital contribution is essential for entitlement to equity interests, and voluntary withdrawal before payment severs the economic link with the company.
