Post by account_disabled on Mar 12, 2024 14:47:25 GMT 10
The practice of unfair contradictory conduct by the franchisee has the force to prevent the allegation of nullity of the franchise contract that was not signed and returned. Even without observing the legal form, it is possible to terminate the contract, with the imposition of a fine and compensation for losses and damages.
reproduction
Verbal agreement whose formal contract was not signed was recognized by the STJ
Reproduction
With this understanding, the 3rd Panel of the Superior Court of Justice dismissed the special appeal of a franchisee who was the target of action by the franchisor, for failing to comply with the clauses of a contract that had never been signed and refunded.
The decision was unanimous, as voted by the rapporteur, minister Nancy Andrighi. Ministers Paulo de Tarso Sanseverino, Ricardo Villas Bôas Cueva, Marco Aurélio Bellizze and Moura Ribeiro voted with her.
The case deals with the Portugal Mobile Number List franchise of an agency and sports exchange company. The franchisee did not sign the contract, but received training, used the brand, installed the franchise and even paid the franchisor the considerations established in the document.
Subsequently, the franchisor identified that the franchisee was not complying with the terms of the contract. There was a failure to standardize student training forms, non-compliance with image standards for use in backdrops and customer diversion.
Disclosure
For minister Nancy Andrighi, facts outlined in the ruling show a tacit declaration of the will of the franchised company
Disclosure
The action was filed to break the contract. The ordinary courts judged the request to be valid, with an order to pay a fine of R$ 15 thousand and compensation for losses and damages of R$ 57.5 thousand, in addition to the prohibition of acting as a franchisor or directly in a similar business competing with the franchisor's business. , for a period of 2 years.
To the STJ, the convicted company pointed out the nullity of the franchise agreement due to an offense against article 6 of Law 8,955/1994 — legislation applicable at the time of the events, and which was more recently revoked by Law 13,966/2019.
The rule stated that "the franchise agreement must always be written and signed in the presence of two witnesses and will be valid regardless of whether it is registered before a notary or public body", something that did not occur in the specific case.
Rapporteur, Minister Nancy Andrighi pointed out that the case provides evidence of a tacit declaration of will by the franchisee, even in the absence of signing the contract. This is because the agreement was executed for a considered period of time, which constitutes agreement and acceptance of its previously agreed clauses.
"In this context, the behavior adopted in court by the appellant — allegation of nullity due to a formal defect — is clearly contradictory to the conduct practiced previously, consistent with the execution of the contracted terms", pointed out the rapporteur.
"Therefore, the practice of unfair contradictory conduct by the appellant has the force to prevent the allegation of nullity of the franchise contract due to non-compliance with the form recommended in article 6 of Law 8,955/1994", he concluded.