Excluding a majority partner is possible if he commits serious misconduct. Based on the possibility that minority partners may take the initiative to judicially exclude a majority partner who commits serious misconduct as the company’s manager, as stipulated by Article 1,030 of the Civil Code, the Third Panel of the Superior Court of Justice (STJ) upheld a ruling for the exclusion of a quotaholder who, according to the case records, engaged in unfair competition against the company. The decision was unanimous.
In the action that gave rise to the appeal, the plaintiffs alleged that the company’s majority partner was also the manager of another company operating in the real estate sector, which would constitute unfair competition against the corporate group.
Decision — The first-instance judge upheld the claim and ordered the exclusion of the majority partner from the corporate membership, with the consequent reduction of the share capital corresponding to the quotas of the excluded partner. As to the exclusion, the judgment was upheld by the Court of Justice of Minas Gerais.
By means of a special appeal, the majority partner argued that Article 1,030 of the Civil Code — which provides for the possibility of the judicial exclusion of a partner upon the initiative of the majority of the remaining partners in cases of serious misconduct — should be interpreted in conjunction with Article 1,085, with the consequent requirement of the initiative of partners holding the majority of the share capital.
Preservation of the company — The rapporteur of the appeal, Justice Villas Bôas Cueva, emphasized that, as established by Statement 216 of the III Conference on Civil Law, the deliberation quorum provided for in Article 1,030 of the Civil Code/2002 is the absolute majority of the capital represented by the quotas of the remaining partners, excluding those belonging to the partner who is sought to be excluded.
Based on legislation and doctrine, the Justice explained that Article 1,030 brings the possibility that minority partners may also take the initiative for the exclusion of a majority partner who commits serious misconduct in the performance of his obligations, provided that the quotaholder’s fault is duly demonstrated.
In such cases, however, the exclusion may only be carried out through judicial means.
“Thus, in the judicial exclusion of a partner by reason of the commission of serious misconduct, the condition provided for in Article 1,085 of the Civil Code of 2002 does not apply, being applicable only in the event of the extrajudicial exclusion of a partner by deliberation of the majority representing more than half of the share capital, by means of an amendment to the articles of association,” the rapporteur stressed.
In the vote, which was unanimously followed by the panel, the Justice also emphasized that a different conclusion would imply the impossibility of the judicial exclusion of the majority quotaholder, even if his acts at the head of the company were harmful. For the rapporteur, this scenario would not be compatible with the principle of the preservation of the company.
Read also about another case of unfair competition here.
(Source: STJ)
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