1. Introduction

In August 2025, a decision was published by the Third Panel of the STJ that stated, when the articles of association are silent, the primacy of the legal subsidiary criterion for calculation in the determination of assets in partial dissolution of a company (REsp 2.063.134/MG, rapporteur Min. Ricardo Villas Bôas Cueva, j. 08/12/2025, DJe of 08/13/2025 – check here the full text of the judgment).

The controversy originates in the discussion about the possibility of applying a method different from the legal subsidiary criterion (in casu the use of the discounted cash flow methodology to the detriment of the balance sheet), when the contract is silent and, mainly, in the face of the inertia of the opposing party in providing the documentation necessary to determine the true net worth of the company.

The core of the discussion was the method of determining the share settled to the withdrawing partner. As an aggravating factor, it was verified that, originally, the company had failed to present the financial documents requested by the expert who, due to the absence of financial data, opted for the use of the discounted cash flow methodology.

When judging the appeal, the Court understood that the use of the method adopted (discounted cash flow) was unfeasible, even if the defendant had not presented the documentation requested by the expert. It verified, therefore, that in the absence of a contractual provision, the special balance sheet must be used, that is, the legal method of determining assets.

2. The discounted cash flow and the balance sheet by determination

Among other ways to verify the value of the settled share, the decision in question deals with the discounted cash flow and the special balance sheet.

That is based on the theory that the value of a business is a function of the future benefits it will produce, that is, its capacity to generate future wealth, maintaining the degree of risk of its operational assets (as defined in REsp 2.063.134, extracted from referencing Perez and Famá).

It consists, therefore, in projecting future operational cash flows and bringing them to present value, by an appropriate discount rate, which measures the risk inherent in these flows and the opportunity cost of capital.

On the other hand, the special balance sheet (or, determined balance sheet/by determination) does not make projections, as it starts from the premise that, if the partner withdraws from the company, they are not entitled to what the company may come to profit. This is a kind of simulation of the total dissolution of the company, based on the date of the partner’s departure (that is, on the death of the partner, on the date of exclusion or on the date of the expression of will in the case of withdrawal), and considering the probable liquidation values of the assets that make up the company’s assets.

In this vein, Bertoldi and Ribeiro verify that through the “determination balance sheet, assets and liabilities will be reevaluated with the objective of seeking the fair and real value of the company, including tangible and intangible assets that make up the so-called goodwill” (BERTOLDI, Marcelo M.; RIBEIRO, Márcia Carla Pereira. Curso Avançado de Direito Comercial. 12ª ed. RT, 2022, p.149-170).

3. From legal subsidiarity in the face of the omissive determination clause

For cases in which the articles of association are silent, art. 606 of the Civil Procedure Code¹ provides that the discounted cash flow method shall be applied. This is because, pursuant to art. 1,031 of the Civil Code², “unless otherwise provided in the contract”, the settlement will be made “based on the company’s net worth, as of the date of the resolution”.

Thus, in the absence of an agreement between the parties, it will be up to the judge to define as a criterion for determining assets, the methodology of the determination balance sheet which is nothing more than an update of the accounts of the company’s accounting balance sheet.

According to Tomazette, such regulations derive from the patrimonial character of the right to the determination of assets which, inserted in the private sphere of the partners, takes space in their sphere of availability. In this sense, the listed provisions have a supplementary and subsidiary character to the stipulation, by the partners themselves, of the methods for determining assets (TOMAZETTE, Marlon. Curso de Direito Empresarial – Teoria Geral e Direito Societário. Vol 1. 16ª ed. SRV, 2024, p. 324).

4. From the conduct of the parties to the primacy of the legal criterion

In view of REsp 2.063.134/MG, there is the peculiarity that the expert report was prepared based on the only documentation existing in the records, given that the company failed to present the accounting documentation requested by the expert. The answers to the questions presented were based exclusively on the Corporate Legal Entity Information Statements – DIPJ, between the years 2007 and 2010, and the Daily Book of the year 2010.

The Third Panel of the STJ stated that, although the inclusion of expectations of future profits in the determination of assets is prohibited, the withdrawing partner cannot be prejudiced by the omission of the opposing party regarding the delivery of the documents necessary for the preparation of the special balance sheet.

Thus, an absolute presumption of veracity is not possible regarding facts that depend on absent documentation, which in this case was aggravated, as the documents were in the possession of the company and not the withdrawing partner. This prevents the dissenting partner from filling the evidentiary gap regarding the preparation of an expert report appropriate to the case. The presumption of art. 400 of the CPC³ is relative, and must be assessed in conjunction with the other circumstances of the specific case.

The company’s omissive behavior, therefore, does not authorize the use of the discounted cash flow method, so that the settlement could not be closed based on insufficient elements. Thus, the STJ determined, in casu, the reopening of the evidentiary phase, pursuant to art. 938, § 3°, of the CPC⁴, with the intention that new expert evidence be produced, this time, from complete documentation that enables the correct application of the legal criterion.

In this sense, the articles of association are the first parameter for the determination of assets, a logic that respects private autonomy and the binding force of corporate agreements. In the absence of contractual stipulation, the legal criterion applies, which is the determination balance sheet, to the detriment of methods based on future projections.

5. Conclusion

The judgment of REsp 2.063.134/MG reaffirms the importance of specific contractual provision regarding the determination of assets. If it is silent, the legal criterion based on the special balance sheet prevails, rejecting methodologies based on projections or future expectations.

In addition, the omission in the delivery of documents by the company cannot imply damage to the withdrawing partner.

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^¹ Art. 606. In case of omission of the articles of association, the judge will define, as a criterion for determining assets, the net worth determined in the determination balance sheet, taking as reference the date of the resolution and evaluating assets and rights of the asset, tangible and intangible, at the sale price, in addition to the liability also to be determined in the same way.
Sole paragraph. In all cases in which it is necessary to carry out an expert examination, the appointment of the expert shall preferably fall on a specialist in the evaluation of companies

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^² Art. 1,031. In cases where the company is dissolved in relation to one partner, the value of their share, considered by the amount actually realized, shall be settled, unless otherwise provided in the contract, based on the company’s net worth, as of the date of the resolution, verified in a specially prepared balance sheet.
§ 1° The capital stock will suffer the corresponding reduction, unless the other partners supply the value of the share.
§ 2° The settled share will be paid in cash, within ninety days, from the settlement, unless otherwise agreed or stipulated in the contract.

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^³ Art. 400. When deciding on the request, the judge will admit as true the facts that, through the document or thing, the party intended to prove if:
I – The defendant does not carry out the exhibition or make any statement within the term of art. 398;
II – The refusal is deemed illegitimate.
Sole paragraph. If necessary, the judge may adopt inductive, coercive, mandatory or subrogatory measures so that the document is exhibited.

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^⁴ Art. 938. The preliminary issue raised in the judgment will be decided before the merits, and the latter will not be known if it is incompatible with the decision […]
§ 3º Recognized the need for the production of evidence, the rapporteur will convert the judgment into diligence, which will be carried out in the court or in the first degree of jurisdiction, deciding on the appeal after the conclusion of the instruction.