Exceção do contrato não cumprido nos acordos de acionistas

The defense of unperformed contract, historically applicable only to bilateral contracts, prevents one party from demanding performance before fulfilling its own obligation. With the evolution of business contracts, the application of this institute in plurilateral agreements, such as shareholder agreements, might be considered. To this end, the article seeks to evaluate, first, the necessary requirements for the application of the defense of unperformed contract, such as: reciprocal obligation, contemporaneity of performance, non-performance, and the good faith of the exceptant. Next, the effects resulting from the exercise of the defense of unperformed contract are studied, both on the defaulting party (exceptant) and on the wrongfully demanded party (excipient). After understanding the limits of the institute, a detailed analysis is made of the legal nature of the shareholder agreement and its main types, to assess the applicability of the defense of unperformed contract to said businesses. Finally, a clause of a shareholder agreement entered into between minority shareholders and the shareholders comprising the control block is analyzed to demonstrate that the reciprocity between the concession of voting rights of the minorities and the formulation of a more favorable dividend distribution policy would contain the necessary requirements for the application of the defense of unperformed contract.