Post by account_disabled on Mar 13, 2024 1:57:46 GMT -5
Privileging the loss of one of the parties to the detriment of the other, by all the logic of contracts organized in the take or pay format , would be the same as the Judiciary interfering in the rebalancing of a contract.
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istockphotos.com Shopping must pay minimum electricity as stipulated in contract
With this understanding, judge Renata Mota Maciel, from the 2nd Business Court and Arbitration Conflicts of São Paulo, denied a shopping mall's request, which, due to the economic crisis triggered by the Covid-19 epidemic, intended to provisionally suspend the obligation to make minimum monthly payments for electricity (as provided for in the contract), paying only for the energy actually consumed.
"The Judiciary cannot take B2B Lead upon itself the distribution of the risks of business activity, especially when the contracting model is formed by several clauses that take care to meet the interests of the parties in profit scenarios, but also in an unfavorable context like the present," he said.
The clause that deals with unforeseeable circumstances or force majeure in the contract in question, as stated in the case file, allows the minimum payment to be revised when only one of the parties is unable to fulfill its obligations. The epidemic, in Maciel's view, affects both parties — the shopping mall and the electricity distributor.
"This is not to disregard the losses incurred by the shopping center now author, which is certainly notable in the context of social isolation and compulsory closure of establishments. However, applying clause 10.1 to the benefit of one of the parties, when also It is clear that the losses affected the activity of the defendant, an energy supplier, it would be disregarding the entire context that led the parties to opt for the electric energy supply model in the incentivized modality", he stated.
The judge also stated that the theory of unpredictability, according to article 478 of the Civil Code, is not applicable to the case: "There is no way to consider an extreme advantage for the other party, given that the news is current that the value of the MWh has suffered an excessive reduction, exactly along the lines of what has unfortunately been happening in other markets due to the pandemic that is ravaging the planet."
Thus, Maciel said that sparing the mall from the risks of contracting, even in a judgment of summary cognition of the facts, would be the same as breaking the entire risk allocation established at the time of contracting, which cannot be done, at least in the way intended by the author, exactly because the context of the pandemic affected everyone, including the energy distributor.