TJ-SP recognizes the validity of negotiation on attorney fees in messaging application

The 21st Chamber of Private Law of the São Paulo Court of Justice (TJ-SP) in the judgment of Civil Appeal No. 1112009-49.2018.8.26.0100 decided on the validity of the negotiation on contractual attorney fees carried out by means of an instant messaging application. It was recognized, therefore, that “the interpretation of contracts must be governed by the principle of good faith and cannot disregard technological evolution”, so that it covers negotiations and contracts signed with the support of different devices and tools (telephone, e- mail, applications).

At the origin, it was a collection action involving the retention of attorney fees, judged, in the first degree of jurisdiction, to be well founded, on the grounds that there was no written contract that supported the subcontracting of a lawyer by the original patron of the plaintiff. That said, there was an appeal, in which it was argued that the plaintiff agreed, in writing, through the use of an instant messaging application, with the subcontracting of a lawyer and the increase of the percentage of 6% on the success of the action.

In this context, the delimitation of the controversy in the second degree of jurisdiction consisted of “knowing if the dealings established between the parties, through the application of messages, can be considered as a contract”. More specifically, if the interaction in the application by which the subcontracting of a lawyer was authorized for the payment of an additional 6% can be considered an addendum to the fee contract signed that authorized the retention of contractual fees, in the case of success, in the percentage of 20 % on the economic benefit.

Observing the factual particularities of the specific case, the authorization for additional hiring of lawyers was highlighted, information on the value that would be added to the contract and the consent expressed by messaging application. In view of this, the Rapporteur Judge understood that “the law cannot be kept up to date with the vicissitudes of time”, since “ignoring the social changes implemented by technology means stopping in time, and, in the case of the case, allowing the contractor to miss contractual good faith ”. Thus, the sentence was reformed, to dismiss the collection action as unfounded.

By: Wilson Sales Belchior