The Court denied a special appeal of a company that sought indemnification for lost profits, since the real estate development in which it would rent a store was not delivered. In the view of the justices, if the business activity did not even begin, it is not possible to assess the probability that the claimed profits would in fact have occurred.
In the origin, the company sought termination of the contract and lost profits for breach of the lease agreement with the company responsible for the construction of a shopping mall in São Paulo, alleging that it made the agreed payments, but the building was not inaugurated.
Read also:
Court holds that a former partner should not pay debt after leaving the company
By reason of the lack of elements for ascertaining the lost profits, the court of first instance ratified an expert report based on the accounting balance sheets of another store of the same commercial brand, established in a shopping mall in another region of the city, to arrive at the amount of the indemnification.
However, the Court of Justice of São Paulo (TJSP), adopting the theory of loss of chance, partially granted the appeal of the shopping mall’s construction company to set the indemnification at 50% of the amount established at first instance.
At the STJ, the plaintiff of the action argued that the TJSP could not substitute the lost profits calculated by the expert – whose condemnation appears in a judicial enforcement title – with the application of the theory of loss of a chance. The company responsible for the shopping mall also filed a special appeal and argued that nothing would be owed, since the lost profits were not proven, given that the business activity had not even begun.
Lost profits and loss of a chance
According to the rapporteur of the appeals at the STJ, Justice Nancy Andrighi, to resolve the matter it is necessary to distinguish the concepts of lost profits and loss of a chance. The first, according to the Civil Code, represents that which the creditor reasonably failed to profit, by direct and immediate effect of the debtor’s non-performance of the obligation.
The loss of a chance, the justice explained, has no express provision in the Brazilian legal order, “being an institute originating from French law, received by Brazilian doctrine and case law, and which carries within it the idea that the unlawful act that deprives someone of the opportunity to obtain a better future situation generates the duty to indemnify.”
In her vote, the rapporteur cited a precedent of the Fourth Panel, which, in the judgment of REsp 1,190,180, considered the loss of a chance “something intermediate between actual damage and lost profits.”
“It is inferred, therefore, that in lost profits there is certainty of the advantage lost, whereas in the loss of a chance there is certainty of the lost probability of obtaining the advantage,” she clarified.
Res judicata
For Nancy Andrighi, the confrontation between the judicial enforcement title and the appealed ruling reveals an offense to res judicata, since the command contained in the former imposes the reparation of the advantage effectively lost, because the shopping mall was not built (lost profits), and not the reparation of the loss of the opportunity to obtain that advantage (loss of a chance).
Thus, the rapporteur analyzed the special appeals from the standpoint of the proof of the lost profits. According to her, the case law of the STJ guides that the configuration of lost profits “requires more than the mere possibility of realizing the profit; it requires objective probability and concrete circumstances that these would have occurred without the interference of the harmful event, and the condemnation to the payment of lost profits based on mere conjecture and without concrete grounds cannot subsist.”
“Specifically as to the hypothesis of the records, the understanding of this court is to the effect of not admitting indemnification for lost profits without proof and, consequently, rejecting hypothetical, remote, or presumed profits, included in this category those that would supposedly be generated by the profitability of a business activity that was not even initiated,” she said.
In her view, in the case, the loss of profits was not revealed as a future and probable prejudice by direct and immediate effect of the debtor’s non-performance of the obligation. Thus, the justice denied the appeal of the company that brought the action and granted that of the shopping mall’s construction company in order to recognize the lack of proof of the lost profits.
Source: STJ
← Back to blog