By Fabio Marques
In a quick definition, related contracts are contracts that are related by some of their elements, and create a relationship between the accessory contracts, allowing an extensive interpretation between their clauses, or even the extension of liability between the contracting parties, as explained by Ruy Rosado Aguiar Jr. “it is possible that the extras escape the common model and link several singular (or simple) conventions in a bond of dependence, accessory, subordination or causality, bringing them together or connecting them in such a way that the vicissitudes of one can influence the other”.
There is a connection between the singular relationships that make them related contracts, usually establishing a relationship between the main and accessory contract.
Case law has already established the expression and effects of the recognition of contractual coalition, as, for example, in the judgment of the Court of Justice of São Paulo, which ruled that the laboratory that performed the clinical analysis, the hospital that hosted it and the health plan were jointly and severally liable for diagnostic errors, ordering the payment of compensation for moral damages to the consumer harmed by the erroneous result (TJSP, Civil Appeal No. 568,839.4/6, Judgment No. 3945,845, São Paulo, 4th Private Law Chamber, Rel. Des. Francisco Loureiro, judged on 07/16/2009, DJESP 08/10/2009). The STJ, in a ruling by then Minister Ruy Rosado de Aguiar, “if two related contracts were entered into, one main and the other secondary, the first having as its object a lot with a residential house, and the second dealing with two contiguous lots, for a leisure area, the lack of full payment of the price of this second contract may lead to its termination, maintaining the main contract, the price of which was fully paid” (STJ, REsp 337,040/AM, Rel. Min. Ruy Rosado de Aguiar Jr., FOURTH PANEL, tried on 02.05.2002, DJ 01.07.2002).
From the same Superior Court, it is understood that the employment contract between a club and a professional athlete is the main business, with the image exploitation contract being the accessory legal business, which is fundamental to establish the jurisdiction of the Labor Court to assess the dispute involving the agreements (STJ, AgRg in CC 69,689/RJ, Rapporteur Justice LUIS FELIPE SALOMÃO, SECOND SECTION, judged on 09/23/2009, DJe 10/02/2009). It is worth highlighting, immediately afterwards, a higher decision that recognized the economic dependence of common contracts in the fuel market, in the case of equipment supply and loan contracts, entered into between distributors and gas stations (STJ, REsp. 985.531/SP, rapporteur Justice VASCO DELLA GIUSTINA (JUDGE CONVENED FROM THE TJ/RS), THIRD PANEL, decided on 09/01/2009, E-DJ 10/28/2009).
Given this relationship between the contracts, the contractual clauses communicate with each other and the Superior Court of Justice ended up extending the effects of the commission clause, which provides for the arbitration procedure to resolve contractual issues, to the related contract.
This is the content of the decision of September 18, 2018 in which the Third Panel of the STJ understood, by majority vote, the arbitration clause in related contracts.
In this case, there was a dispute between the company Paranapanema and the banks BTG Pactual and Santander, involving an amount of R$1,400 million. The conflict originated from a credit opening agreement worth R$1,400 million, entered into between Paranapanema and the two banks for the restructuring of the company and payment of creditors.
As a form of payment, the company chose to subscribe to new shares, which would be protected by swap contracts, which would protect the banks from a possible fall in the share price. The discussion revolves around the issues of defects in the formation of the arbitration tribunal and the linking of the swap contracts to the arbitration clause present in the credit opening agreement.
Based on the rapporteur's vote, the understanding was formed that the swap contracts would be accessories to the loan, with their obligations arising directly from it, and this interconnection would characterize the contractual coalition and would allow for the extensive interpretation of the application of the arbitration clause.
It must be recognized, however, that the issue is controversial, as voted by Minister Luis Felipe Salomão, according to whom arbitration depends on an express declaration of will by the parties, and therefore it would not be possible to force a party to an arbitration procedure to which it expressly did not agree.