A resilição de contratos de distribuiçãouma visão sobre o art. 473 do Código Civil

Resumo

Art. 473 of the Civil Code allows the unilateral termination of agreements “whenever expressly or implicitly permitted by law”. Prodigal in vague legal concepts, art. 473 has been at the core of several disputes between contracting parties. Many of such disputes occur in the context of distribution agreements “stricto sensu”, which are agreements where market players – on one side, manufacturers/suppliers and, on the other, distributors – undertake to sell and buy products, on a regular and continuous basis, to make such products available in a specific market. The party that has been surprised by the early termination of its distribution agreement is likely to be upset and may decide to resort to art. 473 to maintain such agreement in force. Art. 473 provides that the unilateral termination of an agreement “will only be effective after the lapse of a time that is compatible with the nature and amount of the investments” made. Thus, that party may claim that it has invested in its contractual relationship, that such investments have not been fully amortized, and that the unilateral termination intended by the other party should not be effective. When a dispute between the party that wanted to unilaterally terminate the distribution agreement and the party that opposes to it ensues, courts tend to rely on the vague legal concepts in art. 473 and the general principles that underpin it, such as the principles of good faith and the social function of contracts, to intervene in a private business relationship and, in certain cases, keep manufacturers/suppliers and distributors, against the will of one of the parties, bound to their agreement while they discuss the investments made, the compatibility of the time the agreement has remained in force with the nature and amount of such investments, and the circumstances under which such agreement could have been unilaterally terminated. As parties dedicate considerable time and resources to the dispute, their businesses deteriorate. Not rarely, at the end of this lengthy process, there are more “dead than wounded”. This paper aims to discuss the unilateral termination of distribution agreements and to propose recommendations for the drafting of unilateral termination clauses in such agreements in order to reduce the uncertainties inherent to the unilateral termination process, hence preventing disputes and minimizing opportunities for judicial intervention. Accordingly, this paper is expected to contribute to (a) the better structuring of unilateral termination clauses in distribution agreements, (b) the increase in predictability of the unilateral termination of such agreements, (c) the reduction of disputes in connection with the unilateral termination, and (d) the reduction of the opportunities for judicial intervention in private business relationships, thus promoting freedom of contract and the parties’ autonomy at the time they enter into their agreements. Even though these recommendations were prepared in the context of distribution agreements, many of them will be useful for the unilateral termination of similar agreements, such as supply and service agreements.

Ficha do documento

Tipo

Dissertação

Ano

2023

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/33391

Palavras-chave

Art. 473 of the Civil CodeUnilateral terminationDistribution agreementsArt. 473 do Código CivilResilição unilateralContratos de distribuiçãoDireitoContratos - RescisãoBrasil. [Código civil (2002)]