A validade das cláusulas cross default no controle externo de sociedades

Cross default clauses, common in both domestic and international business, provide creditors with an effective way to deal with debtor default in other contracts or assess their indebtedness. However, there are concerns about their abusive use by creditors. This article examines these clauses, proposing parameters to assess their validity and abuse in the external control of companies, considering the contractual structure, types of companies involved, and contractual objectives. To this end, it begins by discussing what the object of protection of cross default clauses would be: the universality of the debtor’s assets or the contractual plan defined between the parties. Concrete examples are used to clarify the actual use of these clauses and how they exert pressure on the debtor’s behavior. Next, the concept and characteristics of control power in the Brazilian legal system are developed, and its compatibility with contractual relations is assessed. After evaluating the contours of external control power, a series of illustrative situations that would result in abusive exercise of control power by the creditor are outlined. Finally, it is indicated that, in theory, there is no prohibition of cross default clauses to structure control power, as they are just another lawful species available in the Brazilian legal system.