Exclusão de sócios: Meu sócio está prejudicando a empresa, o que fazer?

Summary

In this video, lawyer Ronan Santos explains the process of removing a problematic partner from a limited liability company (Ltda) in Brazil. He highlights two main methods: the cost-effective extrajudicial exclusion, which requires a contractual clause and applies only to minority shareholders, and the more expensive, time-consuming judicial exclusion, applicable to both minority and majority shareholders. Santos emphasizes the importance of anticipating such issues in the company’s operating agreement to prevent serious damage to the business, such as reputational harm or financial instability.

Takeaways

• 😀 If a partner is harming the company, there are two main options to address the issue: extrajudicial exclusion or judicial exclusion.
• 😀 Extrajudicial exclusion is the least costly and faster option, but it applies only if the partner has less than 50% of the company's capital.
• 😀 Judicial exclusion is more expensive and time-consuming, applicable when the partner holds more than 50% of the company or if the operating agreement doesn't specify grounds for exclusion.
• 😀 For extrajudicial exclusion, the company's operating agreement must include a clause outlining serious misconduct that justifies the exclusion of a partner.
• 😀 Examples of misconduct include a partner abandoning their duties, competing directly against the company, or damaging the company's reputation.
• 😀 A business lawyer should help draft a clause in the operating agreement to prevent and handle situations of partner misconduct effectively.
• 😀 In the case of judicial exclusion, the process could take years and negatively impact the company during the proceedings.
• 😀 If a partner’s actions are detrimental to the company, it is crucial to act promptly to avoid the potential collapse of the business.
• 😀 A clear and specific definition of 'serious misconduct' in the operating agreement can prevent future conflicts and expedite the removal process if necessary.
• 😀 It is recommended to consult with a lawyer or accountant to ensure that the operating agreement is correctly drafted and covers the necessary clauses for partner exclusion.

Q & A

What are the two possible solutions for dealing with a partner who is harming the company?

The two possible solutions are extrajudicial exclusion and judicial exclusion. Extrajudicial exclusion is usually less costly and faster, while judicial exclusion is more expensive, lengthy, and can harm the company.

What is extrajudicial exclusion of a partner?

Extrajudicial exclusion is the process of removing a partner from the company without involving the judiciary. It is done through a simple alteration of the company’s contract at the commercial registry, provided certain conditions are met.

What are the conditions required for extrajudicial exclusion of a partner?

For extrajudicial exclusion, the partner must hold less than 50% of the company's capital, and their actions must be deemed of undeniable severity. Additionally, the company’s contract must explicitly provide for such a clause.

What actions are considered 'acts of undeniable severity' that could justify extrajudicial exclusion?

Examples include abandoning the company's activities, opening a competing business, diverting funds from the company, or actions that damage the company’s reputation.

How can a company prevent issues related to a problematic partner in the future?

A company can prevent such issues by including a clause in its social contract, which allows for extrajudicial exclusion of a partner for actions that severely harm the company. It’s important to outline the specific actions that could lead to exclusion.

What happens if a partner holding more than 50% of the company’s capital is causing harm?

If a partner is a majority shareholder (owning more than 50% of the capital), extrajudicial exclusion does not apply. In this case, judicial exclusion would be the only option.

What is judicial exclusion, and when is it used?

Judicial exclusion is a legal process where the majority of the other partners can petition the court to remove a partner due to grave misconduct. It’s applicable regardless of the partner’s share in the company and does not require a prior provision in the company’s social contract.

What is the main disadvantage of judicial exclusion compared to extrajudicial exclusion?

Judicial exclusion is more costly, time-consuming, and potentially damaging to the company, as the process can take years and the company may suffer in the interim.

What are the legal references for extrajudicial and judicial exclusion in the Brazilian Civil Code?

Extrajudicial exclusion is based on Article 1085 of the Brazilian Civil Code, while judicial exclusion is based on Article 1030.

Why do most companies fail to include the necessary clause for extrajudicial exclusion?

Most companies fail to include this clause because their social contracts are often drafted by accountants who may not be aware of the need to address potential severe partner actions, leading to a lack of proper foresight.