The Third Panel of the Superior Court of Justice (STJ) definitively judged, in 2024, Special Appeal 1,989,291. By majority vote, the understanding was established that the clause limiting the duty to indemnify – also known as the non-indemnification clause or the clause limiting liability – can be applied. The judgment became final.
This is an important precedent of the Superior Court, which confirmed the validity of the non-indemnification clause in the legal system – something even more relevant in Brazil, where there is no rule that expressly addresses the issue.
In his winning vote, Justice Moura Ribeiro, who became rapporteur after opening a dissent, understood that it was necessary to reform the judgment handed down by the Court of Justice of São Paulo. This court had removed the clause limiting the duty to indemnify in the specific case, recognizing that the technical superiority of one of the parties, with the subsequent contractual imbalance generated by the excessive increase in economic dependence in the contractual relationship, would be sufficient to remove the provision of the parties that limited the amount of the indemnity.
This understanding was also adopted in the STJ by Justices Ricardo Villas Bôas Cueva, the original rapporteur of the appeal, and Humberto Martins.
In summary, the winning vote stated that the economic use could even justify the breach of contract, but not the removal of the clause limiting the duty to indemnify. The legal regime of this clause was equated to that of the penalty clause, since it is a contractual instrument used in the event of default of the obligation, as provided for in article 408 of the Civil Code.
In the vote, the rapporteur even mentions that the vulnerability of one of the parties to the contract would not prevent the knowledge and understanding of a clause limiting liability, in addition to highlighting that he did not see any type of intent in the setting of the agreement.
In his vote, Justice Moura Ribeiro also addressed the allegation of breach of contractual balance due to the violation of the economic order allegedly committed by the party that benefited from the non-indemnification clause.
The STJ carefully analyzed the specific case, which provided for a significant amount as the limit of compensation. This factor allowed for the protection and weighing of the risks assumed by the contracting parties when choosing that type of contractual relationship. It is also noteworthy that other large-scale contracts would be unfeasible if there were no preventive mechanisms such as the clause limiting the duty to indemnify, due to serious legal and economic uncertainty.
Justices Marco Aurélio Bellizze and Nancy Andrighi followed the position taken by Justice Moura Ribeiro in his dissent, while Justices Ricardo Villas Bôas Cueva and Humberto Martins defended removing the clause, given the specificities of the given case.
It is important to note that the unsuccessful vote did not defend the removal of the non-indemnification clause because it understands that this adjustment is not allowed in the national legal system.
On the contrary, in his vote, Justice Ricardo Villas Bôas Cueva focused on this clause and recorded its validity in the national legal scenario, stating that "respecting the requirements for the validity of the legal transaction (capacity, object and form) and excluding some specific situations (such as those of arts. 424 and 734 of the CC), there are, in principle, no obstacles to the free agreement of the limitation and/or exoneration of liability."
However, following the widely majority doctrine that points to the validity of this clause, the dissenting vote highlighted that one of the hypotheses for its removal would be configured:
- violation of public order;
- limitation of liability arising from willful or grossly culpable conduct;
- exemption from indemnity for non-compliance with the main obligation; and
- offense to the life or physical integrity of persons.
In view of this judgment by the STJ, the understanding of the validity of the clause limiting the duty to indemnify in the Brazilian legal system is even more consolidated. The decision contributes, therefore, to providing legal certainty to contractual relations, which have increasingly provided for this type of adjustment.
