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Legal Update

Brazil: Superior Court of Justice Reinforces the Freedom of Will to Contract on Shopping Mall Lease Agreements

10 May 2016
Tauil & Chequer Legal Update

On May 5 of last year the Third Chamber of the Superior Court of Justice (STJ) acknowledged the validity of a clause which asks for the payment of double rent in December – the well-known “13th rent” on shopping mall lease agreements.

Although this ruling was acknowledged by the first degree of jurisdiction, the validity of said clause was challenged by the Court of Justice of Paraná, stating that although being a current practice, such a charge would be unfair, basing its decision on the preponderance of the social role of the contract over the contractual freedom.

At the Superior Court of Justice level, however, the rapporteur judge (Minister Paulo de Tarso Sanseverino) voted for the revocation of the prior judgment based on the principles of business autonomy and legal certainty, as well as article 421 of the Brazilian Civil Code and article 54 of Federal Law N. 8,245/91, also highlighting that in addition to being such a typical arrangement in shopping mall agreements, it also has an economic purpose, since “In December, the double rent payment is expected in order to allow the entrepreneur or the manager to cope with the increase on expenses this time of the year”.

This decision granted by the Superior Court of Justice is of paramount importance as it endorses the business freedom of the parties involved in shopping mall lease agreements, according to article 54 of Federal Law N. 8,245/91, which prioritizes the private autonomy of contracting parties on this type of agreement.


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