A commission of jurists appointed by Minister Luis Felipe Salomão has drafted a bill to update and adapt the Civil Code, which is currently under review by the Federal Senate. The main objective of the draft bill is to simplify the measures stipulated by the current law and align the Code with doctrinal and jurisprudential understandings that have contributed over the years to update certain topics due to changes in the business environment since the enactment of the Civil Code, in 2002.

The draft bill proposes significant changes to business law, directly impacting the rules of Corporate Law. Below are some proposals that could affect the daily operations of business entities:

• Social Contract: o anteprojeto visa a utilização do contrato social como instrumento principal para definir o regramento da sociedade. O objetivo é que os sócios, ao constituírem as suas sociedades, elaborem o contrato de forma detalhada para trazer maior segurança jurídica aos seus interesses. Tal condição é justamente para evitar discussões jurisprudenciais já existentes, principalmente no que diz respeito ao critério para apuração de haveres de sócio retirante, falecido, excluído ou cônjuge/companheiro separado.
• Calculation of Assets:Here, the jurists aim to align the Civil Code with the procedure for calculating assets already provided in the Civil Procedure Code (“CPC”), determining that if there is no criterion set in the company’s social contract, the assets should be calculated through a determination balance, taking the resolution date as a reference and valuing the assets and rights, both tangible and intangible, including those generated internally, as well as the liabilities, similarly.
• Date of Company Resolution:The draft bill also aims to maintain the criteria for defining resolution dates already established by the CPC for cases of partial dissolution of the company, but including the provision of the resolution date in cases of divorce or dissolution of a stable union, which should be the date of de facto separation.
• Shareholders Agreement:The draft bill formalizes the possibility of entering into a Quotaholder Agreement among the company’s partners, aiming to define internal rules for buying and selling quotas, preference for acquiring them, exercising voting rights, or controlling power of the company. Currently, for the drafting of a partner agreement, doctrine uses the supplementary application of the Corporate Law (Law No. 6,404/76), referring to Shareholder Agreements. These agreements only need to be filed at the company’s headquarters to be effective, without needing registration with the Commercial Boards.
• Management:One of the main novelties in the draft bill’s proposal is the possibility of companies being managed by a legal entity. Currently, corporate laws only grant the capacity to manage companies to individuals.
• Shareholder Meetings:To simplify shareholder meetings, the new project prefers holding meetings virtually, allowing hybrid meetings, and dispensing with meetings when shareholders representing the majority of the share capital decide, in writing, on the matter that would be the subject of the meeting (currently, the meeting is only waived when all shareholders declare in writing on the matter).
• Deliberations:To concentrate all shareholder deliberations made by votes corresponding to more than half of the share capital, regardless of whether or not the social contract is amended.
• Call for meetings:It is intended that calls for shareholder meetings be made twice, on consecutive days, to at least two addresses, physical or electronic, provided by the shareholders and stipulated in the social contract. If calls are made in these terms, the act will be valid and effective. Additionally, it will be the shareholder’s responsibility to keep their registration data updated with the company.

Besides the above proposals, there are several suggestions brought by the appointed Commission to update the legal provisions on contemporary issues that have been left out over the 22 years of the Civil Code’s validity.

Given the significant proposed changes for companies, it is essential to closely monitor the progress of the bill to check its approval and whether all changes will be maintained. The CPDMA office will be attentive to the due procedures.

By: Liège Fernandes Vargas
Corporate Law | CPDMA Team

To view the full text of the draft bill presented by the Senate’s Internal Temporary Commission, click here..

Civil Procedure Code: Art. 605. The date of the company’s resolution shall be:
I - in the case of the death of a partner, the date of death;
II - in the case of voluntary withdrawal, the sixtieth day following the receipt by the company of the notification from the withdrawing partner;
III - in the case of withdrawal, the day on which the company receives the notification from the dissenting partner;
IV - in the case of withdrawal for just cause from a fixed-term company and the judicial exclusion of a partner, the date of the final court decision dissolving the company; and
V - in the case of extrajudicial exclusion, the date of the shareholders’ meeting or assembly that resolved the exclusion.