The topic becomes even more delicate due to the civil law rules that govern the subject.
In the words of Alfredo de Assis Gonçalves Neto[1], “withdrawal is usually referred to as any of the ways in which a partner voluntarily leaves a company”. Other doctrinal conceptions conceptualize the institute as a potestative right, of unilateral declaration of will, which imposes on society the obligation to reimburse those who exercised the right to withdraw their social participation. In any case, the right of withdrawal represents the right that the partner has to, on his own initiative, leave the company, upon receipt of the value of the shares that belonged to him. The controversy, however, consists of knowing the hypotheses in which the partner can exercise the so-called right of withdrawal when there is no express provision in the articles of incorporation of the conditions for its exercise.
To better understand the issue, it is essential to compare the legal norms that have already addressed the subject. The right of withdrawal was introduced into the Brazilian legal system through article 15 of Decree 3.708/1919[1], the same one that regulated the limited liability company. In the rules of the legal provision, the exercise of the right of withdrawal had as an indispensable prerequisite the dissent of a partner regarding a change to the articles of incorporation imposed by partners with a majority shareholding.[2]. In other words, the right to withdraw a member from the company was restricted to cases of modification of the articles of association approved by the majority, so that it could not be exercised at any time or in any way.
It turns out that, due to the limited possibilities for exercising the right to withdraw, a strong doctrinal current emerged at the time defending the range of situations in which a partner could express his desire to withdraw from the company. The legal basis for this trend was article 335, 5, of the Commercial Code of 1850, which authorized the dissolution of a company by the mere will of one of the partners as long as it was a company for an indefinite period.
With the advent of the Civil Code of 2002, which expressly revoked the Commercial Code of 1850, the topic was addressed again. In a specific chapter[1] intended for the regulation of limited companies, the legislator, following the same line as the 1919 Decree, provided in article 1.077[2] that the right to withdraw arises from the partner's disagreement in cases of modification of the articles of incorporation approved by the majority. Doctrinally, the rule became known as motivated withdrawal, as it conditioned the exercise of the right to a specific pretext (see the partner's dissent from an amendment to the social contract.)
In fact, the Civil Code authorizes the application of the rules of simple companies to limited companies in cases where there is no specific provision, by virtue of article 1.053 of the Civil Code[1]. However, the chapter dealing with limited companies contains a specific rule for exercising the right of withdrawal, so that another part of the doctrine argues that it is not possible to allow unmotivated withdrawal in limited companies.
As can be seen, the discussion on the topic is not shallow and goes even deeper if analyzed — even mistakenly — under the constitutional precept that no one is obliged to remain associated (article 5, XX, Federal Constitution[1]) and from the perspective of the principle of affection society, a basic principle of corporate law that defends that the company presupposes the will of its partners in its formation and maintenance.