A sociedade em conta de participação mascarando verdadeiro contrato de consumo

Abstract

The work aims to analyze the silent partnerships that masks a consumer contract. The silent partnerships is an important, valid and efficient institute, with a corporate nature and used in relations between parts that are equals, notably investments. Consumer contracts are bilateral legal transactions, involving supplier and consumer, that acquire goods or services as the final recipient. The relationship between consumers and sellers/suppliers is naturally unbalanced and the consumer contract law seeks to rebalance the obligatory relationship, starting from the presumption of consumer vulnerability. And although consumer law is made up of rules of over-law, with a transversal impact on all branches of law, there is an insurmountable incompatibility between partnerships and consumer contracts. Whenever the aforementioned corporate type is used in consumer relations, the option will characterize an attempt to avoid the incidence of the more rigorous consumerist system, composed of rules of public order and social interest. Thus, the contract of incorporation of the company will be void, for the purpose of defrauding the mandatory law or due to the simulation. But the recognition of invalidity and the return of the parties to the previous state are insufficient for the adequate protection of consumer rights. Thus, based on the principle of conservation of legal transactions and objective good faith, it is proposed to continue the interpretative path so that the void legal transaction produces effects, especially through substantial conversion. At the end of the operation, given the same factual support, a qualitatively different legal transaction will remain, which is the consumer contract. Then, adequate judicial control will be possible, which is the one that resolves the dispute based on consumerist principles and standards