A partnership between a small number of people rarely starts out with every formality in order. A partner joins the business by agreement among the existing partners, by succession within the family, by a division of assets in a divorce — and the amendment to the articles of association (contrato social) that should formalize that entry with the Commercial Registry takes time. Sometimes nearly a decade. A recent ruling by the Third Panel of Brazil's Superior Court of Justice (Superior Tribunal de Justiça, STJ) addressed what is left of that delay: can a partner whose formal inclusion came late demand an accounting from management for the period before registration too?
The Question
In the case at hand (REsp 2,085,219/SP), a divorce settlement (separação consensual) approved by a court in October 2009 awarded the former wife 25% of the equity in a company in which her former husband was already a managing partner. The settlement itself required him to amend the articles of association by that November, and to notify the change to a federal savings bank by July 2010. The amendment was not formalized with the Commercial Registry until July 2018 — nearly nine years after the agreed deadline. When she filed an action to demand an accounting (ação de exigir contas) against the company's managers, the São Paulo Court of Justice's First Reserved Chamber of Corporate Law limited her claim to the period during which she was already formally listed as a partner. The question that reached the STJ was direct: does standing to demand an accounting from management run from registration, or from the underlying bond with the company?
The Analysis
The reporting justice in REsp 2,085,219, Justice Ricardo Villas Bôas Cueva, began from the duty Article 1,020 of the Civil Code places on managers: to render partners a justified accounting of the management, together with an annual inventory and balance sheets. Article 1,021 of the same Code rounds out that duty with a mirroring right — the partner's right to examine, at any time, the company's books, records, and cash position. It is to enforce that duty, when not met voluntarily, that the action to demand an accounting exists, governed by Article 550 of the Code of Civil Procedure (Código de Processo Civil).
The argument that set aside the registration requirement, though, was a different one: in the justice's words, a company's existence does not "exclusively hinge" on its registration with the Commercial Registry. Even without formal registration, a de facto partnership can arise from the partners' joint conduct, from their intent to jointly pursue an economic activity, and from the sharing of results — and rights and obligations between the parties already flow from it, regardless of any documentary formalization. Registration confers publicity and effects toward third parties; it is not an essential condition for the company to exist, nor for the duty to account to reach someone who already held the quotas. In this case — and this is the holding stated in the headnote (ementa) — proof of ownership of the equity — through the court-approved settlement itself — was enough to show the legal bond going back to 2009, and the STJ ordered that the accounting cover the entire period the claimant sought, subject only to whatever the limitation period cuts off.
The Nuance
The ruling does not waive the requirements the STJ's case law already demands of any action to demand an accounting: a demonstrated legal bond between claimant and defendant, a claim bounded in time, and stated grounds justifying the accounting — a generic claim, missing those three elements, does not survive even for a formally listed partner. It bears noting, too, the role of the limitation period: it was the claimant herself who, in her appeal, invoked the ten years set by Article 205 of the Civil Code — the general rule for personal claims, absent a shorter specific term — and it was that period, not a longer one, that the STJ ordered considered. The window for holding management accountable widens; the limit that bounds it stays the same.
Practical Implication
Companies with an informal partner — an heir who stepped into the position without amending the articles of association, a spouse who received equity in a property settlement — carry a documentary risk that this ruling narrows, without eliminating it. A delay in registration no longer works as a shield against having to account for management. It still requires the de facto partner to gather proof of the bond from its origin, preferably the title to the quotas: the settlement document, the instrument of assignment between partners. The holding rests on that proven ownership; entry by verbal agreement, with no title to the quotas, depends on evidence the ruling did not examine.
The point cuts both ways. For the de facto partner, the ruling offers a path — proven ownership of the quotas is enough to sue —, but it does not replace amending the articles of association, which remains the most direct way to head off any dispute over when the bond began, rather than leaving it to be reconstructed nearly a decade later, as happened here. For the manager, the ruling creates no new duty — the one under Article 1,020 already exists, registered or not —, but it does give him reason to formalize the partner: it marks out precisely who is owed an accounting, and from when, instead of leaving the scope of the duty to be reconstructed — and disputed — years later from documents outside the articles of association themselves. The STJ's ruling ensures that the underlying bond already produces effects between the parties while formalization is pending; getting ahead of it, either way, is what narrows the dispute for both sides.
