Clipping of news on Brazilian Culture, Law and Citizenship
05/13/2016
This article was translated by an automatic translation system, and was therefore not reviewed by people.
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Source: STJ
The radius clause, inserted in shopping center space lease agreements, is not abusive. Understanding is the Fourth Chamber of the Superior Court of Justice (STJ), signed on trial in a special feature. For the college, the malls are a hybrid and unique business structure and extravagant clauses serve to ensure the economic development of the order.
The call radius clause prohibits tenants of a shopping exploring the same business in a certain distance away, in order to restrict competition in the supply of goods and services around the venture.
If appreciated, the Union of Shopkeepers in the Porto Alegre Commerce filed a declaratory action of unenforceability against a city shopping to be declared invalid radius clause inserted in contracts with the tenants of the project.
state decision
The Court of Justice of Rio Grande do Sul (Id) accepted the request on the grounds that the radius clause violates the principle of free competition with other malls; creates obstacles for entrepreneurs interested in expanding the business; besides causing damage to the consumer, which is induced to attend certain shopping center to find the property you are looking for.
In the present case, it was also alleged contractual change, increasing from 2 to 3 km, the distance to be respected by the tenants not to install another shop in the same industry. For TJRS, modification infringed the principle of objective good faith.
another understanding
In the Supreme Court, the understanding of the gaucho court was not kept. The rapporteur Minister Marco Buzzi stressed that the specific form of the contract between the tenant and objective shopping economic and administrative viability and success of the project, desired by both parties.
The rapporteur also dismissed the consumer injury claim. In addition to the installation of tenants in other projects depend on numerous factors and agreeing with the sentence, he clarified that the radius clause ends enhancing competition with the opening of other projects in the surroundings.
Marco Buzzi also considered it impractical to impose limitations on signed contracts based only on general situations, without a case alleging the unconscionability clause and damages.
Regarding contractual modifications that extended the distance of the radius clause, the rapporteur considered that the once respected leasing contracts in progress, the change has no illegality or unconscionability.
This is because the business owner may impose restrictions and conditions for the use of their property by third parties, except for the possibility of review of via judicial matters before the provocation of the party that considers itself injured.
This news refers to the (s) procedure (s): Resp 1535727
Source: STJ
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This article was translated by an automatic translation system, and was therefore not reviewed by people.