Post by account_disabled on Mar 13, 2024 1:19:05 GMT -5
When the party to a contract says that it was harmed by force majeure (Covid-19), but does not offer any possibility of sacrifice, either in its general context or to the other counterparty in the contract, it cannot be said that there is procedural equality ( CPC, article 7) nor material (CF, article 5, caput). Therefore, it is impossible for the court to simply suspend the contractual effects in relation to one of the contracting parties.
This understanding comes from the 11th Private Law Chamber of the São Paulo Court of Justice when denying a company's request to suspend, for at least 180 days, all charges relating to open contracts with a bank "in light of the force majeure generated by the epidemic of the coronavirus.” The company claimed financial difficulties arising from the crisis, but the request was denied.
According to the rapporteur, judge Gilberto dos B2B Lead Santos, the company wants to impose a moratorium on the creditor bank that does not exist in law. "And all based on a force majeure (Covid-19) that affects, in principle, all parties to the contract," he said. For him, the probability of the law, "with all the more than a thousand pages that make up this instrument", is not evident.
"From this perspective, despite the use of the plaintiff's ad terrorem arguments, there is no way to understand the issue other than as the result of a hasty search for a jurisdictional solution with a misuse of purpose, that is, allowing us to see that it triggers actions for all creditors as currency to start dialogue about possible self-composition solutions", added the rapporteur. The decision was unanimous.