reason, conflicts between those parties
have been resolved by direct, non-criti-
cal and formal application of the binary
code "legal/illegal."
But the main hypothesis is clear: the
above mentioned relationships between
shareholders must be judged and inter-
preted by using the classic notions of
non-permitted behaviors extracted from
the bona fides tradition, because this is
what the Brazilian Civil Code says, at
least in three different articles.
That very tradition has been able to
define some kinds of actions one should
not consider legal, and two of them seem
to belong to Company Law: the venire con-
tra factum proprium and the tu quoque.
simply "contradictory behavior") can
be described as a series of two or more
events in which the active party acts in a
certain legal way at first and afterwards,
without any reasonable explanation and
external factor to support his behav-
ior, changes his mind and undoes the
original action. It is important to point
out that both actions the first and the
one that denies it are legal if observed
separately. However, when seen as a
series of events, the second action is
considered unlawful.
clean hands." Should Brutus be given
power after having committed murder
and treason? Had Shakespeare taken Ju-
lius Caesar's point of view history would
have provided us with another interpreta-
tion of that event.
Amongst shareholders sophisticated
operations (mergers, takeovers and many
other agreements) are often used as a
preliminary strategy to sell a company's
control and increase the advantages of
the major shareholder. Minor sharehold-
ers often see their "tag along" advantages
vanish and their investment diminish
when a public offer is made. Are those
"lawful" operations to be held as such in
a scenario where the bona fides principle
is enforceable?
capable of understanding the importance
and weight of the various principles that
a commercial relationship involves. The
ancient studies on the separate legal
personality of a company are an eloquent
evidence of that capability
Brazilian and American Lawyers.
Therefore, the Brazilian Civil Code,
perhaps even more than diplomatic and
political efforts, can approach Brazil
and the United States by allowing a
full cooperation between American and
Brazilian judges and lawyers.
for public companies (Lei 6.404/76). Two basic types of
corporations come out of the Brazilian legislation: the
limited corporations with quotas (which were influenced
by the German GmBH) and the anonymous corporations.
3 Menezes Cordeiro, Antonio Manuel da Rocha, `Da Boa
(1956), page 150-151: `The comments are true: the rule
is not found after interpretation of the principle, but
obtained from a judge's decision.' (unofficial translation
by applicant).
defined as `subjective' good faith, which takes into ac-
count the individual and their actions having their inner
qualities as a parameter. The other is called `objective'
good faith and is defined by a set of allowed and not al-
lowed codes of conduct. According to Menezes Cordeiro,
the objective good faith is dictated by judges and not by
a formal statute.
the Jurisprudence of the WTO', by Marion Panizzon,
published in August 2006).
rectio.
principle to determine the case solution, Brazilian
Legislators have throughout the years legislated to turn
that principle into concrete acts, such as in the case of
minority protection, tag along etc.
the case of Salomon v. A Salomon & Co. Ltd.