In the contracts of shopping centers, one of its particularities is the existence of a radius clause, ie the restriction of competition in the surroundings by the members of the commercial enterprise. In view of this, the syndicate of Porto Alegre Jokers filed a lawsuit for the declaration of nullity of this clause under the argument that it would be abusive.

The Court (RS) welcomed the request for understanding that the radius clause would violate the principle of free competition with the other malls, would create obstacles to entrepreneurs interested in expanding their business, in addition to bringing prejudices to consumers, For, in practice, such a limitation means inducing the consumer to attend a particular shopping center to find the establishment they are looking for.

However, in the context of the Superior Court of Justice (STJ), the understanding was amended. The 4th class of the STJ understood that the specific modality of the contract between the shopkeepers and the mall objective economic and administrative viability, as well as the success of the enterprise, desired by both parties, and that malls constitute a hybrid and peculiar commercial structure, In which extravagant clauses serve to ensure the economic end of the enterprise. Minister Marco Buzzi, the rapporteur of the case, referred to in his vote to impose limitations to signed contracts based on generic situations, without a concrete case which alleges the abusivity of the clause and the losses suffered.

Notwithstanding the arguments used in the trial, it deserves to be observed the place where the controversy occurred, since the economic viability of the enterprise, as well as the success conquered over the years, was already public and notorious knowledge for the whole population of the municipality, so that the maintenance of the indefinite radius clause would not be under this prism. Moreover, in which weigh the involvement of imposing limitations to contracts signed on the basis of generic situations, more reasonable would be to honor the collective interest of both the shopkeepers - directly affected - and consumers. In any case, the Judgment of the STJ leaves open the possibility of individual questions by the shopkeepers, provided they have demonstrated the effective losses supported.

Source: www.stj.jus.br. RESP 1535727.

by gabriel osipow guedes
Civil area lawyer of carpena associate lawyers