Commercial Partnership Agreements: Legal Structure, Business Risks, and Essential Clauses

This article analyzes commercial partnership agreements from a legal standpoint, focusing on their structure, the risks arising from informality or the lack of clearly defined obligations, and the essential clauses necessary to ensure legal certainty for the parties. It concerns an atypical contractual arrangement, commonly used in the Brazilian market to facilitate cooperative business relationships, but which may be confused with corporate partnerships, commercial representation, franchising, or employment relationships. The article presents doctrinal and jurisprudential parameters for drafting a valid, effective, and litigation-preventive contractual instrument.

The concept of a commercial partnership has been widely adopted in the Brazilian business environment as a means of enabling cooperation between companies or entrepreneurs, particularly in sectors such as product distribution, service provision, sales, marketing, and events. However, the lack of specific legal regulation and conceptual precision regarding the nature of this contractual relationship can lead to significant legal risks.

It is common for commercial partnerships to be informally established or drafted in generic terms, which facilitates their judicial recharacterization as de facto partnerships, employment relationships, commercial representation, or even service contracts involving subordination.

This article aims to offer legal guidelines for properly structuring commercial partnership agreements, with emphasis on the limits of contractual autonomy, the risks of informality, and the clauses necessary to mitigate legal conflicts.

2. Concept and Legal Nature of the Commercial Partnership

There is no express legal definition of the commercial partnership as a typical contract under Brazilian law. It is, therefore, considered an atypical contractual arrangement, grounded in the principle of party autonomy, as established in Articles 421 and 421-A of the Brazilian Civil Code:

Art. 421. Freedom of contract shall be exercised in accordance with and within the limits of the social function of the contract. Art. 421-A. In business contracts, parity and symmetry between the parties are presumed, unless proven otherwise.

The commercial partnership is generally characterized by cooperation between independent entities that maintain their own legal, accounting, and operational structures, aiming to promote aligned interests—without forming a corporate entity.

3. Distinctions Between Partnerships and Other Legal Relationships

It is crucial to distinguish the commercial partnership from other legal arrangements, to avoid unintended legal obligations:

Legal Relationship	Commercial Partnership	Distinctive Feature
Corporate Partnership	Involves shared assets and common profit goals	No joint assets or legal entity in a partnership
Commercial Representation	Agent acts on behalf of the company	In a partnership, parties act independently
Service Contract	Involves technical, legal, and personal subordination	In a partnership, the parties retain operational autonomy
Employment Relationship	Requires subordination, regularity, and compensation	Absent in legitimate partnerships

Confusion between these legal forms may result in unintended burdens, such as joint liability, labor obligations, or disregard of separate legal personality.

4. Risks of Informality and Poor Contractual Structure

The main legal risks arising from the absence of a formal contract or poorly drafted agreements include:

Recognition of an employment relationship if there is regularity, subordination, and personal service;• Attribution of joint or subsidiary liability, particularly in dealings with consumers or third parties;

Asset commingling, leading to piercing of the corporate veil;

Loss of evidence, hindering legal defense in potential litigation.

Case law has consistently rejected claims of “partnership” where there is no clear contractual and operational autonomy between the parties.

“In the absence of effective autonomy between the parties, and in the presence of subordination and regularity, an employment relationship is established, regardless of the terminology used in the contract.” (TRT 2nd Region, RO 1000737-47.2022.5.02.0038, ruled on 05/11/2023)

5. Essential Clauses in a Commercial Partnership Agreement

To ensure legal certainty, the contract should include at least the following provisions:

A clearly defined contractual purpose (activities and roles);

Express declaration of the absence of corporate or employment ties, with autonomy between the parties;

Remuneration and payment terms, including commissions, deadlines, goals, or percentages;

Territorial exclusivity or non-exclusivity, as applicable;

Prohibition of direct subordination or disciplinary authority;

Individualized responsibility for taxes, liabilities, and business risks;

Term, termination provisions, and notice requirements;

Confidentiality and non-compete clauses, where applicable;

Dispute resolution via mediation, arbitration, or competent court.

These clauses help define the scope and boundaries of the relationship, protecting both parties in the event of a dispute.

6. Relevant Case Law

“A partnership agreement must reflect the autonomy of the parties and cannot disguise a subordinate legal relationship. Form does not prevail over factual reality.” (STJ, REsp 1.749.103/RS, Justice Paulo de Tarso Sanseverino, ruled on 03/17/2020)

“Contractual informality does not exempt a party from liability for improperly established legal relationships, especially where a de facto corporate partnership is simulated.” (TJSP, Civil Appeal No. 1009823-44.2021.8.26.0100, ruled on 06/15/2023)

7. Best Practices in Managing Commercial Partnerships

Formalize the partnership through a written agreement, with legal review;

Maintain separate accounting and operational systems between the parties;

Avoid emails, messages, or behavior that suggest control or subordination;

Implement periodic contract reviews based on changes in the partnership’s dynamics.

Final Considerations

The commercial partnership agreement is a legitimate and widely used instrument for business cooperation. However, its informality or poor structure can lead to serious legal consequences, including the recognition of employment relationships, liability for third-party debts, or corporate litigation.

Clear definition of the contractual purpose, autonomy between the parties, and the boundaries of liability is essential for legal security. Preventive legal counsel plays a crucial role in structuring and maintaining stable business relationships, ensuring proper risk allocation and protection of contractual intent.