Luiz Antonio Varela Donelli and Carolina Wright Machado
In view of the current emergency situation and the absolute public calamity that Brazil is now facing due to the rapid spread of the Coronavirus pandemic, new normative instruments, of the most diverse natures, are being issued daily, in order to avoid the socioeconomic collapse in the country, as well as to try to recover all the damages already caused by such crisis.
As an example, the Federal Senate approved, on April 3rd, 2020, the Law Bill no. 1.179 / 2020, that instituted the so-called “Emergency and Transitional Legal Regime for the Legal Relations regarding Private Law (RJET)”, to regulate the Private Law relations during the pandemic period.
The main purposes of RJET is to promote the flexibility of the agreements executed before the occurrence of the Coronavirus pandemic, considering the economic difficulties that the population and companies are already facing due to the drastic and sudden decrease in the demand, the sharp increase in the unemployment rates and, mainly, due to the insecurity about the future, that is increasingly dominating the country. Among the various measures established by RJET, it is important to mention some that directly impact on day by day and on large corporate businesses fulfilled in Brazil:
- The injunctions for lawsuits regarding the eviction of building properties shall be suspended until October 30th, 2020, which is the estimated date for the end of the events resulting from the Coronavirus pandemic in Brazil, unless the respective landlord resumes the place for his own use or for the use of his family members;
- The residential tenants, on the other hand, if they suffer economic-financial changes due to the pandemic, such as dismissal, reduction of working hours or reduction of remuneration, they may suspend, in whole or in part, the payment of the rents due from March 20th to October 30th, 2020;
- The rules for agricultural agreements shall, in general, be eased. On the other hand, the counting of time regarding land occupation, for the purposes of adverse possession, shall be suspended;
- The managers and those liable for the management of condominiums shall be authorized to create temporary restrictions on the access to common areas and for the execution of works. In addition, condominium meetings may be held remotely until October 30th, 2020;
- Dividends provided by business companies to their partners/shareholders may be anticipated.
Thus, once they have been raised and even if they have not been formally approved by the partners/shareholders, the dividends arising from the fiscal year ended in 2019 may be distributed during the fiscal year of 2020 by the administrators of the respective company, regardless of an express statutory or contractual provision in this sense;
- The partners’ and/or general shareholders’ meetings, as the case may be, may be held remotely;
- All the legal terms related to (i) the approval of the financial statements of the business companies, whether by the fulfillment of a partners’ meeting or by a shareholders’ ordinary general meeting, depending on the legal nature of the company; as well as (ii) for the publication, as applicable, and the filing of the corporate acts before the competent boards of trade, shall be extended until October 30th, 2020;
- Until October 30th, 2020, it shall be possible to execute lease agreements with national companies whose corporate capital is mainly held by foreign individuals or legal entities; and
- In the specific case of purchases through delivery involving perishable or immediate consumption products and medications, the enforcement of article 49 of the Brazilian Consumer Defense Code is suspended.
As a general rule, this article would enable the consumer to withdraw the respective product or medication within seven days from its purchase or from the act of receiving it, since such supply contracting occurred outside the commercial establishment, but by telephone and at home.
Finally, it is important to highlight that the inspiration for the draft of this Law Bill was the rules from the French legal system which deal with exceptional situations for the enforcement of the theory of unpredictability. This is because, despite the fact that the Brazilian Civil Code and the Brazilian Consumer Defense Code already have specific provisions that deal not only with the theory of unpredictability, but also with other events that characterize force majeure and unforeseeable circumstances, the consequences created by the Coronavirus still demand new measures, with a much more drastic nature and whose enforcement shall be implemented as soon as possible.