Post by xyz3800 on Feb 28, 2024 10:08:22 GMT
There is no compensation for lost profits if the business activity has not started. This was the understanding applied by the 3rd Panel of the Superior Court of Justice when denying a request made by a company, as the real estate project in which it would rent a store was not delivered. For the ministers, if the business activity has not even started, it is not possible to assess the probability that the claimed profits would actually occur. Originally, the company requested termination of the contract and loss of profits due to non-compliance with the lease agreement with the company responsible for building a shopping mall in São Paulo, claiming that it made the agreed payments, but the building was not opened. Due to the lack of elements to determine the loss of profits, the first degree court approved an expert report based on accounting balances from another store of the same commercial brand, established in a shopping mall in another region of the city, to arrive at the compensation amount.
However, the Court of Justice of São Paulo, adopting the theory of loss of chance, partially upheld the mall construction company's appeal to set the compensation at 50% of the value established in the first instance. At the STJ, the plaintiff claimed that the TJ-SP could not replace the lost profits calculated by the expert — whose conviction appears in the judicial enforcement document — by applying the theory of loss of a chance. The company Exit Mobile Number List responsible for the shopping mall also filed a special appeal and argued that nothing would be owed, as the loss of profits had not been proven, as the business activity had not even started. According to the appeals rapporteur at the STJ, Minister Nancy Andrighi, to resolve the issue it is necessary to distinguish the concepts of lost profits and the loss of a chance.
The first, according to the Civil Code, represents what the creditor reasonably failed to profit from, as a direct and immediate effect of the debtor's failure to perform the obligation. The loss of a chance, explained the minister, has no express provision in the Brazilian legal system, “as it is an institute originating in French law, supported by Brazilian doctrine and jurisprudence, and which carries with it the idea that the act illicit act that deprives someone of the opportunity to obtain a better future situation generates the duty to compensate”. In her vote, the rapporteur cited a precedent from the 4th Panel, which, in the judgment of REsp 1,190,180, considered the loss of a chance to be something intermediate between the resulting damage and the loss of profits. “It is inferred, therefore, that in lost profits there is certainty of the lost advantage, while in the loss of a chance there is certainty of the lost probability of gaining the advantage”, she clarified.
However, the Court of Justice of São Paulo, adopting the theory of loss of chance, partially upheld the mall construction company's appeal to set the compensation at 50% of the value established in the first instance. At the STJ, the plaintiff claimed that the TJ-SP could not replace the lost profits calculated by the expert — whose conviction appears in the judicial enforcement document — by applying the theory of loss of a chance. The company Exit Mobile Number List responsible for the shopping mall also filed a special appeal and argued that nothing would be owed, as the loss of profits had not been proven, as the business activity had not even started. According to the appeals rapporteur at the STJ, Minister Nancy Andrighi, to resolve the issue it is necessary to distinguish the concepts of lost profits and the loss of a chance.
The first, according to the Civil Code, represents what the creditor reasonably failed to profit from, as a direct and immediate effect of the debtor's failure to perform the obligation. The loss of a chance, explained the minister, has no express provision in the Brazilian legal system, “as it is an institute originating in French law, supported by Brazilian doctrine and jurisprudence, and which carries with it the idea that the act illicit act that deprives someone of the opportunity to obtain a better future situation generates the duty to compensate”. In her vote, the rapporteur cited a precedent from the 4th Panel, which, in the judgment of REsp 1,190,180, considered the loss of a chance to be something intermediate between the resulting damage and the loss of profits. “It is inferred, therefore, that in lost profits there is certainty of the lost advantage, while in the loss of a chance there is certainty of the lost probability of gaining the advantage”, she clarified.