Publicado em 17/04/2020

Judge grants injunction for malls to pay only for the electricity consumed during the pandemic in “take or pay” contracts

In a decision ruled on 4/7/2020, the 2nd Court of Business Law and Arbitration Conflicts of the São Paulo, SP granted the preliminary injunction to malls that filed a lawsuit against an energy supply company, to determine that only the amount actually consumed can be charged, and not the minimum amount contracted in the months of March and April.

The parties entered into a power purchase agreement with a take or pay clause establishing an obligation to the plaintiffs to purchase a minimum volume of energy; however, due to Covid- 19 and the administrative measures taken by public authorities related to the closing of malls, the plaintiffs did not comply with their obligation.

The decision considered that the compulsory closure of malls due to the pandemic affected the revenues of such establishments in a massive way, characterizing therefore an event of force majeure, which is why “the restructuring of assets is an imposing measure for them to overcome the crisis without irrecoverable losses”.

On 4/13/2020 the defendant filed a motion for clarification against this decision, which has not been ruled yet.

The full text of the decision in Portuguese can be accessed here.