Agreements involving the provision of services are entered into every day and there are countless models for this type of contract, which are used in day-to-day business.
It so happens that, precisely because they are so commonplace, the contracts are frequently adapted to the specific needs of each business, which leads to a number of distortions and technical improprieties, culminating in the generation of certain risks, which go unnoticed at the time of formalisation of such contracts.
One of these situations, frequently observed, is the provision for the possibility of unilateral and unjustified termination of contracts for a fixed term, free of any penalty. Thus, it is common to see clauses establishing that either party may put an end to the relationship, at any time, simply by communicating their decision to the other party, often the only obligation being to give a certain period of notice, without the need to respect the term initially established for such relationship.
This type of provision can lead the parties into real traps, since they are under the impression that the agreement may be terminated unilaterally without any consequences. However, many jurists take the view that premature termination without cause always entitles the innocent party to compensation, as provided in the Civil Code, in articles 602 and 603, as follows:
Art. 602. A service provider hired for a fixed period of time, or for a specific job, cannot take leave of absence or quit without cause, before the time has elapsed or the work has been concluded.
Sole paragraph. If he quits without cause, he shall be entitled to payment for the work done, but shall be liable for damages. The same shall occur if he is dismissed for cause.
Art. 603. If the service provider is dismissed without cause, the other party shall be obliged to pay him in full for the work done, and one half of the amount that would be due from then until the end of the contractual term.
The Brazilian courts have not yet reached a unanimous position on the matter, and the Superior Court of Justice is in fact currently discussing the need to determine (i) whether a clause in an agreement for services for a fixed term, authorising unilateral termination with a waiver of any type of indemnity, is legal, provided there is prior notice from the other party, and (ii) whether the party that enters into this type of legal transaction, agreeing to an express clause waiving any indemnity in the event of unjustified and premature termination, is guilty of contradictory behaviour (violation of objective good faith) if he seeks compensation in court.
Currently, there are many decisions that impose an obligation on the party that made the decision to leave the relationship prematurely to pay compensation, even if the contract expressly excludes any penalty or indemnity.
Accordingly, it is evident that something that appears to be simple may conceal an important contingent liability.
Thus, for as long as there remains no uniform opinion of the courts, it is recommended that the parties pay extra attention when entering into their contracts, and assess potential risks that may arise from a premature termination of relationships for a fixed term.
An alternative could be to enter into agreements for an indefinite term, with a provision for termination on giving a certain period of prior notice stipulated jointly by the parties, which may eliminate the risk of paying compensation on termination. However, the suitability of this alternative should be verified in each specific case with the advice of a legal professional, because even agreements for an indefinite term may give rise to additional obligations if, for example, the period of notice is not compatible with expectations created at the beginning of the term or investments made by the parties.
The discussion of termination of agreements for an indefinite term will be the subject of a future article.
Contact: Charles Wowk
Title: Partner in the Civil Area at Stüssi Neves Advogados – São Paulo
Email: [email protected]