Government measures in key jurisdictions 4th edition - Flipbook - Page 19
Brazil
Hence, although Brazilian civil law does allow for court interference to restore the balance of
the contract, in business transactions, such interference should be minimum and the parties,
which are considered to be sophisticated entities with equal bargaining power, should have
their agreements enforced as provided for in the contract.
Given that the COVID-19 pandemic (and its effects on contractual relations) is an
extraordinary and recent event, it is important to assess its impacts on each contract, as well
as other circumstances of any particular case and of the contract, in order to determine
whether or not COVID-19 can lead to the rebalance of a contract.
Property
Have any changes
been made to
the laws around
property, rent and
enforcement?
During the Covid-19 pandemic, several bills of law were presented before the National Congress
in an effort to counterbalance adverse effects of the pandemic to lease agreements. Some of
them aimed to rule suspension of rent enforcement as well as reduction of rental values. None
has been effectively approved, except for the measure that prohibits the eviction of lessees in
causes filed from March 20th, 2020, amending items of the Article 59, § 1º of the Law No. 8,245
of 1991 (the Lease Law), until October 30th, 2020.
There is no official understanding from the Brazilian courts about the adverse effects of the
pandemic to lease agreements. Courts are ruling the matters taking into consideration the
particularities of each specific contractual relationship.
There is an effort of the Courts to protect both the lessor and the lessee, assuming that both
parties have suffered the impacts of the Covid-19 pandemic, as well as to prevent opportunistic
behaviors from the parties.
Upon the analysis of approximately 160 decisions of the Courts of São Paulo and Rio de Janeiro,
it is possible to verify that, in cases which Courts decided to reduce the rental values, the
discount varied from 30 up to 70 percent for a certain period of time (usually for the period of
the lockdown). Most common decisions granted 50 percent discount in the rental values
Litigation
Are the courts
operating?
Most Brazilian Courts are operating through remote work and virtual proceedings, including the Supreme
Court and the Superior Court of Justice. The virtual operation of Brazilian Courts is working really well:
according to data provided by the Brazilian National Council of Justice, Brazilian Courts are not only
maintaining their activities during the pandemic, but are also improving their productivity. This was possible
because proceedings that were filed in the past few years in most Brazilian Courts have digital case records,
that can be accessed by court staff, lawyers and parties through a website, in which lawyers can also file the
petitions. The contact with most judges and Clerk’s offices can be made by telephone, e-mail or
videoconference during the pandemic and many trials are being held online. Thus, the closure of courthouses
over the country due to the pandemic mainly affected (i) the proceedings that do not have digital case
records, that have their deadlines suspended and (ii) some acts that cannot be performed virtually (for
example, appraisal of real estate, some trials, some attachment orders).
Government measures in key jurisdictions
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