The service of a legal entity at an old address is not valid when the change of address has already been communicated to the Board of Trade, even if the change has not been reported on the company's own website. The decision was recently issued by the Superior Court of Justice (STJ) in the Special Appeal (Recurso Especial) No. 1,976,741/RJ.

In the case, the defendant argued the invalidity of its summons, based on the argument that the service letter had been delivered to its old address, which, although outdated, was still mentioned in the company’s website as the location of its headquarters.

At the time of the service of process, the change of address had already been informed to the Board of Trade by means of the filing the corresponding corporate act. STJ’s decision also mentions that the letter of summons would have been received by a person not related to the defendant and not by a representative of the defendant.

Based on these two reasons, the defendant claimed the nullity of the service of process during the enforcement of judgment phase, since it had been considered in default.

In response, the plaintiff claimed that:

  • the service of process had been effected at the address publicly declared by the legal entity;
  • the legal entity could not benefit from its behavior of not altering the address in its website, which would be worsened by the defendant having appeared on the lawsuit during the enforcement of judgement phase; and
  • there was no evidence that the person who received the service of process would not be an employee of the defendant.

The State Court of Rio de Janeiro understood that the service of process delivered at the at the address informed in the defendant’s website was valid, although old, on the grounds that there would be an obligation of the legal entity to ensure the updating of the information of the website, by providing the correct address to customers and business partners.

By failing to update the address on the website, the legal entity was supposed to bear the burden of this negligence, and not intend to annul an entire process that was already in the phase of enforcing the lower court decision .

The understanding of the Court of Rio de Janeiro, however, was modified by the Superior Court. The judgment delivered by the court highlighted the importance and formalities required by law for the completion of the service of process and the importance of the right to be heard of both parties to exercise the right to a broad and effective defense.

In the case at hand, the service of process was supposed to follow the provisions of the Code of Civil Procedure of 1973 (CPC/73), which determined, among other rules, that the service would be valid if the letter was delivered to the person with general management and representation powers or to an employee responsible for receiving correspondence and mails.

Considering that it is normally difficult for the legal entity to be served by receiving a letter directly by one of its employees or a person with representation powers, case law was accepting the so-called appearance theory.[1]

In summary, according to this understanding, the service of process made in a commercial establishment or at the headquarters of the legal entity would be valid when received by a person who appeared to have powers to do so and/or by a person whose receipt would reasonably indicate that the legal entity would become effectively aware of the claim.

The incidence of the appearance theory, however, requires two essential elements: the delivery of the service of process at the address of the legal entity and the receipt by an employee of the legal entity.

In the case, the Superior Court disregarded the application of the appearance theory, as the service of process was delivered to an old address of the legal entity and no link between the legal entity and the person who received the letter was demonstrated (it could have been a doorman of the commercial building). In this respect, none of the requirements of the appearance theory would have been met: the letter was not delivered to the address of the registered entity and was the letter was not received by an official, as the connection with the legal entity was not demonstrated.

Moreover, the Judgment of the Supreme Court pointed out that, once the change in the address of the legal entity was registered in the Board of Trade, the new address would already be in the public domain and it could have been verified by the plaintiff. This procedure is exactly what should have been done by the plaintiff: according to Article 319, item II, of the Brazilian Civil Procedure Code, the burden of informing the correct address of the defendant to enable its service of process and other procedural communications is the plaintiff.

The decision of the Supreme Court also objected the argument of the Court of Justice of the State of Rio de Janeiro that the legal entity would have an obligation to provide its correct address in its website to "customers and business partners". To this end, it was understood by the Superior Court that the case is not a contractual matter, which would require out-of-court notifications, but a summons in a lawsuit. The Decision also referred to Law 11.419/06, amended by the recent Law 14.195/21, known as the Business Environment Law, which imposed the service of process by electronic means.

Although the new legislation allows the service of process by email – which is mandatory for all legal entities, except for micro companies and small businesses – the law is clear in determining that the legal entity itself shall indicate an e-mail address in a system of "judicial database, according to the regulation of the National Council of Justice (CNJ)".

It is not, therefore, any e-mail address, but that informed by the legal entity for this purpose, with the aim of safeguarding the formalities of the act of service.

Because of the above arguments, STJ concluded that an address indicated in the website cannot be presumed as valid:  there is no legislation requiring the legal entity to keep the address updated on its website. The court also pointed out that the address of the legal entity was updated and correct in the Board of Trade.

This decision is relevant because it reinforces the understanding that it is the plaintiff’s responsibility to indicate the defendant's address of service of process as accurately as possible. In the case of service of process of legal entities, the plaintiff shall verify the available databases, such as the Board of Trade and the Federal Revenue Service, to ensure the validity of the service of the legal entity, without which the process would be null and void in full.

[1] For example, AgInt on AREsp n° 476.491/RJ, rel. Min. Marco Buzz, Fourth Class, judged on November 12, 2019.