The forum elected membership contract prevails over the jurisdiction of the fact or the place of domicile of the defendant? Ministers of the Third Group of the Superior Tribunal de Justiça (STJ) realized that yes, since the choice of forum has been fixed in the contract without consent or social vice.

The thesis was discussed at the trial of a special appeal by the Fusos Comércio e Participações Ltda. That holds the rights to use the Shell brand in Brazil. The company entered into a franchise with the Cuiabá Produtos Automotivos Ltda. for retail distribution of lubricating oils, greases and other products of the genre. The contract has elected the forum in Rio de Janeiro (RJ) to resolve legal problems arising from the business.

The Cuiabá Produtos Automotivos eventually filed a lawsuit for repair damages in the judicial district of Cuiabá (MT). The judge of first instance kept the action in Mato Grosso to understand that the choice of forum clause was not valid because it made ​​a contract of adhesion, given the interest of only one party. The state court has confirmed the understanding of the judge, applying the rule in Article 100, item V of the Código de Processo Civil (CPC) – which, in the actions to repair the damage, establishes the jurisdiction of the courts of the place of the act.

The rapporteur of the appeal, Minister Sidnei Beneti , pointed out that, according to the current jurisprudence of the STJ, the rule in Article 100, V, the CPC does not apply to repair damage resulting from breach of contract. Moreover, the STJ has held that the Código de Defesa do Consumidor is not applied to the relationship between franchisee and franchisor, so that it can’t be used to discuss the forum.

Regarding the validity of the election's forum, Beneti said that the forum selected by the parties to the contract must be observed even in cases where the action has the objective of seeking damages. "Under the jurisprudence of this Court, the forum of choice can be left when difficult set of legal defense exercise or abuse of contractual provisions," said the minister.

Following the vote of the rapporteur, the Group upheld the appeal to overturn all court decisions that may be applied by the Tribunal of Cuiabá and declare the jurisdiction of the judgment of the judicial district of Rio de Janeiro to adjudicate the action.

Source: STJ