Ipso facto clauses in business contracts: a legal-economic analysis

• Autor(a) principal: Kirschbaum, Deborah
• Data de Publicação: 2006
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direito GV
• Texto Completo: https://periodicos.fgv.br/revdireitogv/article/view/35213
• topic: CORPORATE INSOLVENCY; CONTRACTS; BANKRUPTCY; CORPORATE REORGANIZATION; ECONOMIC ANALYSIS OF LAW; INSOLVÊNCIA EMPRESARIAL; CONTRATOS; FALÊNCIA; RECUPERAÇÃO DE EMPRESAS; ANÁLISE ECONÔMICA DO DIREITO

IN THE BEGINNING OF 2005, BRAZILIAN CONGRESS PASSED A NEW LAW ON CORPORATE INSOLVENCY. AS A CONSEQUENCE, VARIOUS ISSUES HAVE BEEN DEBATED FOR THE FIRST TIME WHILE OTHERS ARE NOW ADDRESSED UNDER A NOVEL PERSPECTIVE. THIS ARTICLE DISCUSSES THE LEGITIMACY OF IPSO FACTO CLAUSES (OR BANKRUPTCY CLAUSES) IN STRATEGIC BUSINESS CONTRACTS. UNDER FORMER LAW, THERE WAS RELATIVE CONSENSUS IN JUDICIAL DECISIONS AND AMONG COMMENTATORS IN CONSTRUING THE APPLICABLE PROVISION TO INVALIDATE BANKRUPTCY CLAUSES. YET, MANY BUSINESS CONTRACTS CONTAINED SUCH CLAUSES. THIS ARTICLE DISCUSSES AND DISMISSES ARGUMENTS IN SUPPORT OF VALIDITY OF IPSO FACTO CLAUSES. IT ARGUES THAT IPSO FACTO CLAUSES ARE INCOMPATIBLE WITH A SYSTEM CONCERNED WITH PROMOTING VALUE MAXIMIZATION OF THE DEBTOR. IN ECONOMIC TERMS, THOSE CLAUSES IMPLY A TRANSFER OF AN ASSET WITH NO PAYBACK. THIS RELEASE VALVE AT ZERO PRICE POTENTIALLY JEOPARDIZES DEBTOR’S REHABILITATION EFFORTS AND RIGHTS OF CREDITORS IN CASE OF LIQUIDATION.