The trial of the special appeal 1881149/DF, which dealt with the validity of the franchise contract without signature of the parties, exposes the weight that some principles expressed in the law may have in the resolution of legal disputes.
The contract dealt in the special appeal was signed under the old Franchise Law (Law 8,955/94), which was in force until March 26, 2020, when it was replaced by the new Franchise Law (Law 13,966/19). For this reason, the old law was used to resolve the dispute.
Article 6 of Law 8.955/94 required the franchise to be written and signed by the parties in the presence of two witnesses. Although the principle of freedom of form in the Brazilian legal system is in force, thus admitting verbal contracts in which the consent of the parties may be issued tacitly or even by silence – as per Article 107 of the Civil Code – the law may expressly require special form (e.g. in private writing or public instrument), as law 8,955/94 did and Law 13,966/2019 does.
In the case in question, at the beginning of 2016, the franchisor forwarded the contractual document so that the franchisee would sign it, which was not done. Nevertheless, the parties put into practice the provisions of the contractual instrument and, at the end of that year, agreed on a contractual amendment, which was also not signed. The relationship between the parties remained being executed until the judgment by the local court, which recognized the contractual default of the franchisee, declared the termination of the contract and ordered the franchisee to pay the franchisor the amount of R$ 57,500.00, referring to the contractual fine.
The contractual fine was reduced to 50% of the amount provided for in the contract, because it was understood that the franchisor contributed to the establishment of a franchise relationship in verbal form, thus justifying the fine reduction.
The franchisee appealed to the Superior Court of Justice (“STJ”) seeking to declare the contract null and void. At the trial, the court sought to ascertain:
- the existence of a tacit manifestation of the parties' willingness to conclude the contract, despite the defect of form resulting from the absence of signature; and
- provided there was this tacit will, if there is a rule in the Brazilian legal system that justifies overcoming the defect of form.
The judgment ended up being based on two main aspects:
- the tacit declaration of the will of the franchisee; and
- the prohibition of contradictory behavior, in full observance of contractual good faith. The principle of contractual good faith, provided in Article 422 of the Civil Code, imposes on contractors the duty to act correctly so as not to frustrate the legitimate expectations of the contractual parties.
The decision states that the expression of will of the franchisee occurred in a tacit manner, with a behavior opposite to what would constitute the "non-acceptance" of the contract. This occurred through the opening of subsidiaries, use of the licensed trademark and the fulfillment, by the franchisee, of contractual obligations, until the violations that led to the lawsuit were found.
The STJ understood that the claim of formal defect by the franchisee, with the aim of achieving the nullity of the contract, pursuant to Article 166, item IV, of the Civil Code, was not sustained, given its behavior contrary to the principle of contractual good faith.
It is worth noting that the judgment was not intended to validate null contract, but to keep the business, understanding that, in the present case, the franchisee gave reasons to the franchisor to trust the agreement that both parties had signed.
Despite the understanding of the Superior Court of Justice, which denied the invalidity of the franchise contract due to lack of signature, it is important that the parties formalize their contracts in writing to ensure greater legal certainty. The measure shall be taken where necessary by legal requirement or if the contracted operation involves risks or complexity. In this way, the parties may have greater predictability on what they have agreed upon and are able safeguard their interests in the face of non-compliance or other adverse contractual situations.
STJ - Resp 1881149 DF 2019/0345908-4. Rapporteur: Minister Nancy Andrighi, date of publication: DJ 02/02/2021.
The new Franchise Law, however, no longer provides for the need to sign two witnesses (Article 7, I).