PEC Newsletter No. 39/2021 – changes in special features
The Chamber of Deputies approved on 07/13/2022 the final text of the Proposed Amendment to the Constitution nº 39/2021 (“PEC of Relevance”). Presented on 11/08/2021 by...
As unusual times require atypical measures
COVID-19, Lockdown and the Edge of Economic Collapse
There are various orders of concern that currently plague a large part of society, not only Brazilian, but also worldwide during the Coronavirus pandemic. The Brazilian economy, in particular, which was thought to be finally coming out of a severely punished period, will again go through a time of enormous uncertainty and, more seriously, with no prospect of improvement in the short term.
Is that the reflexes of the health crisis in Covid-19 will be extremely painful, especially from an economic and financial point of view and even more so in a country with a low investment capacity and in which the great part of the population often does not have the “bread of each day”.
Not surprisingly, the adoption of the painful lockdown measures  worldwide, although unwanted, but because they are truly necessary, given the countless medical and scientific uncertainties generated by the Coronavirus, compromises commercial relations in all of them. the levels, leading companies to bankruptcy, with massive layoffs, and the swelling of the number of unemployed.
It is therefore not new that the quarantine regime implemented in practically all states in the country, with the closing of shopping malls, shops and services in general, impediment to the exercise of individual (autonomous) activities, social isolation, has generated a mismatch in chain that seriously jeopardizes Brazilian economic stability.
Fortunately, such measures, adopted at practically all levels of government (federal, state and municipal), are not being implemented without a counterpart from the public sector, not least because there would be no way to maintain current financial obligations (eg, labor) , social security, tax) and even business with the private sector in general (eg, contracts with suppliers and customers), under penalty of collapse not only of small and medium entrepreneurs, but also of the country’s great entrepreneurs.
Legal Remedies against the Crisis: the Brazilian option and the measures adopted in Germany, France and the USA
In view of these facts, it is that a series of legislative measures that have been adopted by the Federal Government, in conjunction with the National Congress, have been monitored daily in order to minimize the impacts of the COVID-19 crisis.
The most recent, which is under the leadership of the Federal Senate, is Bill 1,179 / 2020, by Senator Antonio Anastasia, with the prospect of being voted on this week in the National Congress. Said bill, in a single text, but very dry and direct, proposes to establish rules of an emergency and transitory nature and related to private law in general (eg consumer law, civil law, business law, competition law, law family and probate and tenancy law)
In this respect, he was clearly inspired by the also transitional rules of German law, which there were named “Ein Schutzschild für Beschäftigte und Unternehmen: Maßnahmenpaket zur Abfederung der Auswirkungen des Corona-Virus”  , that is, a package of legal measures (with changes in rules of civil, business, bankruptcy and criminal procedural law) that seek to protect companies and workers from the Corona Virus crisis and which came into force on March 27, 2020. However, this was not the option taken, at least until now, and especially with regard to secular rules of private law, by other countries such as France and the United States of America, which have a strong tradition of respect for contracts and preservation of the parties’ autonomy.
From the French point of view, the local government, after the enactment of Law 2020-290, of March 23, 2020, has been limited to issuing Ordonnances, such as those of No. 2020-304  and 2020-306 , disciplining rules of procedural and judicial law only, such as, (i) providing for the extension of procedural, appeals, decadential, prescriptive deadlines; (ii) establishing hearing procedures through videoconference, (iii) suspending the effects of astreintes and penal clauses, etc., all during the period of sanitary urgency, as it has been called.
Therefore, there was no revision of the rules of private law per se by the French State, so much so that in the scope of contractual law, for example, discussions about the legal effects of Covid-19 are guided by the existing rules of force majeure , enshrined in art. 1218 of the Code.
In the case of the United States, the much-announced $ 2.2 trillion economic stimulus package was consolidated in the Coronavirus Aid, Relief and Economic Security Act  and is much more a set of financial stimuli to the market (such as the extension of mortgage loans; the redefinition of tax and banking law rules; financial assistance to airlines; unemployment insurance for workers laid off during the pandemic, etc.) than a realignment of rules between private individuals.
These initial considerations seem necessary for us to advance in the study of the themes brought up in PL 1.179 / 2020 and for the doctrine and jurisprudence to be absolutely attentive to the restrictive and emergency nature of the rules provided for therein, under the risk of the collapse gaining legal contours.
Bill 1.179 / 20: extremis malis extrema remedia
The expression is attributed to none other than the father of medicine, Hippocrates: if extreme is the disease, extreme must be the remedy. And this is, in effect, the keynote printed to PL 1.179 / 20. In a world context of shaking our ordinary lives for something that, in Common Law, is called act of God, in the sense that it is something not created by human beings and beyond their control, it is necessary to act preventively to, at least least, try to order chaos. Such an exceptional remedy, or the desperate measure (in English, desperate times call for desperate measures), does not mean, however, to make things even more unstable by introducing inconsequential legal rules or that depart too much from the positive order.
In fact, the whole situation seems to resemble Tancredi’s well-known phrase, in Il Gattopardo: “if we want everything to remain as it is, everything must change”. Of course, the phrase here is used in a different sense from that used in the beautiful novel by Tomasi di Lampedusa, but what we want to highlight is that, in cases like the present, the stability of social relations, due to its own magnitude and character abrupt change in the phenomenal change being experienced, which makes the application of the existing normative model impractical, demands the urgent introduction, in a transient way in principle, of tools that even seem to be contrary to existing things, but whose purpose, after all, it is none other than maintaining them.
In this sense, the comment by Otavio Luiz Rodrigues Junior, known as one of the best specialists in the country in the matter, to the Faillot Law, which is, by the way, expressly mentioned in the Project’s justification given the profound similarity of contexts that unite one another: “ introducing an element of legal insecurity in the seemingly inviolable citadel of pacta sunt servanda was the only means that Liberalism could use to maintain the stability of legal relations ”.  It is within this perspective that the Project must be considered. Its fundamental virtue is, considering the exceptionality of the moment, to seek to implement instruments that ensure with just measure and within reasonable limits a momentary change in the existing rules in order to permanently preserve the greater feeling of security and constancy that magnetize the Law as a whole .
The Bill 1,179 / 20: some specific comments
Having made the considerations outlined above, we proceed to a quick analysis, much more informative than with technical details of the main changes proposed by PL 1.179 / 20. The aim here is to carry out a quick compilation of general and contractual aspects, leaving aside points such as competition law and family and succession law.
From the outset, it must be said that the provisional character of the measure, as informed by arts. 1st and 2nd. The Project initially takes care of prescription and decay, establishing the impediment or suspension of the flow of the respective terms, as the case may be, until 10/30/20 (art. 3). The rule is of justice because, in this exceptional moment, the one who does not favor the counting of the fatal deadline would see it consummated against him, although he is physically prevented from taking any of the measures of art. 202 of the CC to interrupt it.
On the other hand, due to the scale of the crisis, it is no longer the case to subject such impediment to individualized proof. It must, however, safeguard everyone without distinction. Finally, it should be noted that, as it could not be otherwise, the same rule applies to adverse possession (art. 14).
A clear concern of the Project is to make the requirements regarding general and mandatory meetings more flexible due to the determination of civil and business legislation for companies and legal entities in general, as well as in condominium buildings. It is not necessary to emphasize how correct the concern is, since social isolation has been considered the first measure, among the health recommendations given by WHO in the battle to contain the virus. This, however, will not affect, for example, a public limited company with a landmark for its annual general meeting in the middle of the pandemic, or a limited company that needs to change some provision of the articles of association for which a qualified quorum was required.
The Project’s solution is as simple as it is efficient: these deadlines are also extended until 10/30/20. This, however, would only partially solve the lives of companies, as, as pointed out above, there are situations where an internal change is of business interest and this can only be done by corporate resolution at a meeting or assembly. To this end, the Project, also following what is already being done, including other government agencies, allows such acts to be carried out in a virtual or telepresential way, that is to say, remotely or remotely (art. 19).
If “necessity is the mother of invention”, then here there is a positive effect of the Coronavirus, as it seems that the pandemic accelerated the position of the state bureaucracy in favor of the use of electronic means, which until then was, in practical terms, avoided, although the legislation already provided several possibilities for its implementation. Here, we believe that it would not be the case or even to talk about the provisionality of the measure, because it is, in a world as virtual as it is physical, something destined to become a general rule and not just punctual.
In the same vein, the Project gives additional powers to condominium building owners to restrict the use of common areas in order to avoid contamination of the Coronavirus, as well as prohibit the holding of meetings, festivities, and use of vehicle shelters by third parties, including in areas owned exclusively by the tenants, if such measures are eventually necessary to prevent their spread.
An important aspect of the Project is what is intended for contracts. The Project went very well in establishing two well-defined nuclei for the application of the theory of unforeseenness: one, in relation to parity contracts, and the other for asymmetric business situations, such as consumer and lessee. In the first case, the increase in inflation, exchange rate variation, devaluation or substitution of the monetary standard are not considered unpredictable. Conversely, in the second case, yes, the review could take place. In fact, and it is not intended here, to go down to the detailed study of doctrinal issues, what seems to be is that the theory of excessive burdensome is prevailing, so much so that, for symmetrical relations, where, therefore, the parties involved can support a little more than the weight of the item, what is stipulated is that such situations, in essence unpredictable, would not be considered as burdensome.
A curious rule refers to products or services purchased by home delivery, to which the application of art. 49 of the Consumer Protection Code is also mitigated until October 30, 2020. This is the deadline for repenting (withdrawing) from the contract, which is, as we know, seven days from receipt of the goods or product. The Project’s reasons for including exceptionality are almost self-explanatory.
The excessive increase in the demand for such services coupled with the fact that such companies have not even had time to structure themselves to meet this demand, can cause a series of defects in the provision of the service. However, in these pandemic times, delivery develops an indisputable social utility, and it seems to be reckless to allow the consumer to simply exercise his right of resistance in relation to such companies. This does not mean, however, that the consumer is guaranteed the compensation provided for in arts. 18 and 20 of the CDC, whose application, it should be noted, is not ruled out under the terms of the Project.
Finally, it would be the case to talk about arts. 9th and 10th of the Project, which deal with the lease. This speaking of the suspension of payment of rents due to situations that imply economic and financial alteration of the lessee. The article, imbued with a clear feeling of social solidarity, however, does not seem to have reached a degree of political consensus that would allow its approval in the Senate, since there was news that it would have been removed from the text for voting purposes. In any case, the maintenance of art. 9, which prohibits the granting of a preliminary injunction for the eviction of urban property in eviction actions (art. 59 of Law No. 8,245 / 91) until December 31, 2020, for the very same reasons, constitutes considerable encouragement for the millions of Brazilians who will suffer the economic shock resulting from the crisis, without, in any case, placing too much burden on property owners.
We are experiencing a severe crisis, which, says Yuval Harari , is probably the biggest of our generation. It would be naive, given this scenario, to claim that any legislative effort to adapt the current regulatory standard to the emergency arising from the pandemic would be perfect and immune to criticism. Bill 1.179 / 20 must be subjected to a broad reflection by jurists and other professionals who work in the field of Private Law so that it can be perfected and reach even higher levels of excellence than those that already belong to it . It is to be congratulated the effort of Senator Anastasia, who provisionally presides over the Senate of the Republic, as well as the legal committee that formed it, in particular Minister Dias Toffoli (STF), Minister Antônio Carlos Ferreira (STJ) and Councilor and Professor Otavio Luiz Rodrigues Jr. (CNMP / USP) for the initiative that, in addition to the feeling of justice it brings, implements legal security and social solidarity in such dire times.
 These quarantine or isolation measures, which have been applied in the vast majority of countries, during the current pandemic, are nothing new in recent human history. Just remember that it was adopted, albeit to a lesser extent, during the epidemics of the black plague and the bulbonic plague, still in the 14th century, or even when the yellow fever epidemic landed in Philadelphia during the late 18th century, or even when cholera arrived in Italy in the 19th century. More recently, it is worth remembering the case of the Spanish flu, which peaked after the First World War, which infected ¼ of the world population at the time, demanding the implementation of quarantine regimes in several countries.
 At https://www.bundesfinanzministerium.de/Content/DE/Pressemitteilungen/Finanzpolitik/2020/03/2020-03-13-download-de.pdf?__blob=publicationFile&v=4.
 These changes in German law were perfectly exploited by Prof. Otávio Luis Rodrigues Jr. in a recent article in Conjur: https://www.conjur.com.br/2020-mar-25/direito-comparado-alemanha-prepara-legislacao-controlar-efeitos-covid-19.
 At https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755577&dateTexte=&categorieLien=id.
 At https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755644&dateTexte=&categorieLien=id.
 At https://www.congress.gov/bill/116th-congress/senate-bill/3548/text.
 RODRIGUES JUNIOR, Otavio Luiz. Judicial Review of Contracts. autonomy of will and theory of unpredictability. São Paulo: Atlas, 2002. p. 33.
 At: https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75.
By: Tiago Asfor Rocha Lima is a partner at Rocha, Marinho E Sales Advogados and Bruno Leonardo Câmara Carrá is a federal judge
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