Quorums for Deliberations in Limited Liability Companies in Accordance with the New Brazilian Civil Code
Flávio Gonçalves Pontes Sodré*
With the new Brazilian Civil Code, which has begun to regulate the Limited Liability Companies (“Ltdas.”) since the 11th.1.2003, the rules then established by the old Ltdas. Law, Decree nº 3.708, of 10.1.1919, which regulated limited liability companies, will have considerable changes.
Regarding the quorums needed for company deliberations, the old Ltdas. Law had adopted the principle of majority, in which the deliberations of the company would be taken by the partners representing the majority of the social capital.
This principle was established indirectly in article 15 of the Ltdas. Law, when it disposed that the partners who did not agree with company deliberations could leave the company. Being so, both doctrine and jurisprudence concluded that, since there could be dissidents, it was implied that the deliberations could be taken by the partners representing the majority of the social capital, unless there was a different quorum established at the articles of association.
The new Brazilian Civil Code, on the contrary, establishes different quorums for each kind of company deliberations, which shall now be analyzed.
It is established in article 1.061 that it is needed an unanimous decision from all partners to designate an administrator that is not a partner, if the capital contribution is not completed.
According to article 1.076, I, it is needed at least the votes corresponding to three quarters of the social capital to: (i) change the articles of association; (ii) authorize the incorporation of the company by another, authorize a merger, authorize the dissolution of the company or to finish an extra-judicial liquidation process.
It is necessary at least the votes corresponding to two thirds of the social capital to: (i) designate an administrator who is not a partner, if the capital contribution is completed, in accordance with article 1.061; (ii) destitute an administrator that is a partner of the society, unless a different quorum is established at the articles of association, in accordance with article 1.063, § 1º.
In accordance with article 1.076, II, the votes corresponding to more than a half of the social capital are required to deliberate: (i) the remuneration of the administrator, if it is not established in the articles of association. If it is established in the articles of association, than it can only be changed with the votes corresponding to three quarters of the social capital; (ii) for the request of concordat (composition with creditors) of the company.
For other deliberations established in the articles of association or to approve the accounts of the administrator, it is only needed the approval of the majority of the votes of those present at the company assembly.
Being so, from the 10th.1.2004 on, all Limited Liability Companies shall already have adapted its articles of association to what is established in the new Civil Code, including what concern to quorums, since it was given one year for this adaptation process. Many companies have not made these alterations yet. For some, limited liability companies which do not follow on their articles the rules established by law would be irregular. That could threaten the limited liability of the partners, making the adaptation of this companies an important measure to secure the position of these partners in business.
*Members of Trigueiro Fontes Advogados, in Salvador.
** The present article does not represent the opinion of the Office, but only is intended to be a basis for further debates among those interested in this subject.