Business corporations are not merely asset structures organized around capital. Above all, they are legal arrangements that presuppose cooperation, loyalty, and a minimum convergence of purposes among their members. Mutual trust, although not expressly stipulated in the Civil Code as a formal requirement, constitutes a structuring element of corporate coexistence. When this bond breaks down, a crisis arises that transcends the personal level and directly affects the company's governance. The inevitable legal question then arises: does a breach of trust authorize the exclusion of a partner?

The answer requires caution. Brazilian law allows for the exclusion of a partner, but treats it as an exceptional measure, conditional upon demonstrating serious misconduct or behavior incompatible with the essential duties of the partner. Exclusion cannot be trivialized as a mechanism for resolving ordinary conflicts or strategic disagreements, under penalty of compromising legal certainty and opening the door to abuses by the majority.

The analysis of this topic requires the combination of three fundamental axes: the theory of affectio societatis, the normative discipline foreseen in articles 1.030 and 1.085 of the Civil Code, and the jurisprudential construction of the Superior Court of Justice, which has played a decisive role in defining the contours of corporate exclusion.

The affectio societatis and its legal relevance in limited liability companies.

The *affectio societatis* is traditionally understood as the shared intention to form and maintain a company, collaborating in the achievement of its corporate purpose. Although the Civil Code does not expressly mention it, legal doctrine recognizes it as an implicit element in the formation and maintenance of the corporate bond, especially in limited liability companies of a personal nature.

Fábio Ulhoa Coelho argues that *affectio societatis* represents the partners' willingness to act cooperatively, assuming shared risks and committing to the success of the common undertaking. Marlon Tomazette, in turn, observes that, in limited liability companies, the personal element often assumes a importance comparable to the invested capital, especially when dealing with small and medium-sized companies.

However, it is essential to distinguish the subjective deterioration of the relationship from the objective violation of corporate duties. Mere antipathy, distrust, or disagreement in management does not automatically equate to a legal breakdown of the affectio societatis (the mutual trust and confidence between partners). For such a drastic measure as exclusion to be justified, the breach of trust must stem from concrete conduct that compromises the very functionality of the company.

Judicial exclusion due to serious misconduct: article 1.030 of the Civil Code

Article 1.030 of the Civil Code establishes that a partner may be judicially excluded when committing a serious breach of their obligations or when supervening incapacity occurs. The rule therefore requires the presence of conduct that can be objectively classified as serious.

Serious misconduct is not a closed concept, but must be interpreted in light of the fiduciary duties that govern corporate relationships, such as loyalty, objective good faith, collaboration, and diligence. Conduct such as client poaching, unfair competition, misappropriation of company assets, strategic withholding of relevant information, deliberate blocking of essential decisions, or sabotage of management may constitute serious misconduct sufficient to justify exclusion.

The Superior Court of Justice has repeatedly affirmed that judicial exclusion requires robust proof of the seriousness of the conduct and of actual or potential harm to the company. In several precedents involving partial dissolution and exclusion of a partner, the Court has emphasized that the measure is extreme and should be applied sparingly, under penalty of violating the principle of preserving the company.

Case law also emphasizes that internal conflict, in itself, does not authorize exclusion. Corporate coexistence allows for disagreements, and the law cannot function as an instrument for eliminating dissenting minorities.

Extrajudicial exclusion and the procedural rigor of article 1.085

Article 1.085 of the Brazilian Civil Code introduces a possibility for the extrajudicial exclusion of a minority partner in limited liability companies, provided there is an express contractual provision and the partner engages in undeniably serious acts that jeopardize the company's continuity. This is a faster mechanism, but legally more sensitive. The rule requires three cumulative requirements: provision in the articles of association, commission of a serious act, and risk to the company's continuity. The absence of any of these elements compromises the validity of the exclusion.

The jurisprudence of the Superior Court of Justice (STJ) is firm in requiring strict adherence to procedure, including the regular convening of an assembly, guarantee of the right to defense, and reasoned deliberation. Extrajudicial exclusion cannot be used as an instrument of retaliation or consolidation of majority power.

The risk to the company's continuity is a central element. Inappropriate behavior is not enough; the conduct must compromise the very survival of the business.

Breach of trust: rhetorical expression or legal category?

The expression "breach of trust" is frequently invoked in legal proceedings, but it does not constitute an autonomous legal category in the Civil Code. Its normative value depends on its correlation with serious misconduct or violation of fiduciary duty.

The Superior Court of Justice (STJ) has held that a breach of trust must be demonstrated through concrete and objective facts. Exclusion based solely on generic allegations of disagreement is not admissible. Legally relevant trust is that which is linked to the fulfillment of corporate obligations and the preservation of the company's interests. Therefore, a breach of trust can only justify exclusion when it results from behavior incompatible with corporate loyalty and objective good faith.

Limited liability companies and corporations: the intensity of personal involvement.

The importance of trust varies according to the type of company. In limited liability companies with a personalist profile, the personal dimension is more intense. In public limited companies, especially those with publicly traded shares, the personal bond is diluted, with capitalist logic prevailing.

Law No. 6.404/1976 does not allow the exclusion of a shareholder as a general rule, except in very specific cases. This demonstrates that personal trust is not a structuring element in publicly traded companies in the same way as it is in privately held companies. Thus, the analysis of a breach of trust must consider the specific corporate context.

Alternatives to exclusion and judicial control

Exclusion is not always the most legally appropriate solution. The legal system provides instruments such as the right of withdrawal and the partial dissolution of the company, mechanisms that allow conflicts to be resolved while preserving business continuity.

Partial dissolution, widely recognized by the jurisprudence of the Superior Court of Justice (STJ), allows for the determination of assets and the exit of the conflicting partner without dissolving the company. This is a less traumatic solution and often more compatible with the principle of preserving the business.

The exclusion of a partner affects significant property rights and alters the company's structure. Therefore, the principle of proportionality must be observed. The sanction must be adequate, necessary, and proportionate to the seriousness of the conduct. Judicial review acts as a safeguard against abuses, not replacing the will of the partners, but verifying whether the legal requirements have been effectively met.

Conclusion

A breach of trust, considered in isolation, does not justify the exclusion of a partner. The legal system requires serious misconduct that is objectively demonstrable and has a significant impact on the company.

Exclusion is an exceptional measure, intended to protect the company, and not to serve as an instrument of internal dispute. Business law seeks to balance corporate stability, company protection, and respect for the individual rights of the shareholder. Ultimately, trust is a vital element of the company, but its breach needs to be legally justified to warrant such a severe measure as exclusion.

References

BRAZIL. Civil Code. Law No. 10.406/2002.
BRAZIL. Law No. 6.404/1976.
Superior Court of Justice. Case law on the exclusion of a partner and partial dissolution.
COELHO, Fábio Ulhoa. Manual of Commercial Law.
TOMAZETTE, Marlon. Course in Business Law.
CARVALHOSA, Modesto. Comments on the Law of Corporations.