Due to the parity between spouses in the exercise of parental authority, the Third Panel of the Superior Court of Justice (STJ) deemed null an assignment of corporate quotas of a company made to minors under the age of puberty, who were represented in the transaction exclusively by the father, without the consent or knowledge of the mother.
The panel reversed a judgment of the Court of Justice of São Paulo that had deemed the transfer of the quotas valid on the understanding that, in the case, the father did not need the mother’s acquiescence to represent the children’s interests.
Before the STJ, the children claimed that the transaction was null, since, as minors under the age of puberty, they would be prevented from participating in a commercial company, in addition to not having been duly represented, since the father did not hold their custody. They further claimed that the father had used the company in the practice of crimes.
The rapporteur of the appeal, Justice Paulo de Tarso Sanseverino, explained that the fact that the parent does not visit the minor children and does not participate, in practice, in the administration of their assets, by itself, does not interfere with the power to represent them.
In the case, the Justice found that the assignment of the corporate quotas occurred in 1993. At the time – he emphasized –, the Federal Supreme Court already allowed the participation of minors in a limited liability company by quotas, provided that the capital was paid in, and the minor did not have powers of management and administration.
Parity
Sanseverino emphasized that Article 380 of the Civil Code of 1916, in its original wording, determined that, during the marriage, parental authority was exercised by the husband, as head of the family, and – only in his absence or impediment – by the wife.
However, this paternalistic model no longer exists. According to the rapporteur, the Constitution of 1988 guaranteed the woman complete parity in relation to the man, establishing, in its Article 5, I, the legal equality between the genders, in addition to affirming, in paragraph 5 of Article 226, that the rights and duties relating to the conjugal society must be exercised in an egalitarian manner.
“Thus, the Federal Constitution, the filtering parameter of the entire legal system, made unfeasible any interpretation of Article 380 of the Civil Code of 1916 that could give rise to a hierarchically inferior position of the woman in relation to the man in the family environment”, he said. The Justice recalled that Article 21 of the Statute of the Child and Adolescent also provides for the equality between the parents in the exercise of parental authority.
Joint representation
For the rapporteur, there was, at the time of the facts, undeniable parity between the spouses in the administration of the conjugal society and in the exercise of parental authority – which does not imply the possibility of representation of the minor children exclusively by one or the other.
“Both must not only be aware, but must formally represent them in the legal transactions in which they eventually appear as parties – it being irrelevant, for that purpose, the fact that the parents are married, separated or divorced”, Sanseverino emphasized.
The Justice emphasized that the nullity of the transaction does not derive from the fact that the children were represented by the father, but rather from the fact that they were represented only by the father, when the express agreement of the mother was indispensable.
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