Joint and Several Liability Among Companies Within the Same Economic Group: Legal Grounds, Limits, and Procedural Implications

This article analyzes the possibility of joint and several liability among companies that are part of the same economic group, based on corporate law, case law, and the principles of patrimonial autonomy and the social function of the company. The approach begins with the concept of corporate groups, distinguishes their types, and examines the material requirements that justify the extension of obligations among formally distinct legal entities. The article addresses the risks arising from asset commingling and coordinated actions among companies, as well as the limits imposed by due process on the imposition of joint and several liability.

Modern business practice frequently involves organizational structures composed of multiple legal entities, formally or informally linked under common control or integrated management. This reality has triggered intense debate in the fields of corporate and procedural law regarding the admissibility of holding companies jointly and severally liable within the same economic group—especially in the context of default, fraud, or litigation involving external creditors.

This article seeks to analyze the legal and jurisprudential foundations for extending liability across affiliated companies, examining the criteria that permit overriding patrimonial autonomy and justify joint liability, while remaining mindful of the limits imposed by the principle of legality and due process.

2. Economic Group: Concept and Typologies

Brazilian legislation explicitly regulates formal economic groups through the Brazilian Corporations Law (Law No. 6,404/76), Articles 265 to 277. These provisions establish a contractual relationship and defined legal structure between parent companies and their subsidiaries.

However, it is within legal practice that so-called de facto economic groups emerge—comprising legally autonomous companies that operate under unified direction, shared operational structures, and overlapping interests. Courts and legal scholars recognize that such arrangements may warrant joint liability when material interdependence is established.

3. Grounds for Joint and Several Liability Among Companies

Joint liability among companies within the same group does not arise automatically from a corporate relationship. Objective elements are required, such as:

Unified management: common administration or centralized coordination of activities;

Asset commingling: lack of accounting and financial separation between entities;

Misuse of corporate structure: using separate entities to conceal assets, shield liability, or commit fraud against creditors;

Economic subordination: functioning as satellite entities of a central company.

In such scenarios, courts may disregard the legal autonomy of companies and impose joint and several liability, by analogy with Article 265 of the Corporations Law and via Article 50 of the Civil Code (piercing the corporate veil).

4. Current Case Law and Decision-Making Criteria

The Superior Court of Justice (STJ) has consistently ruled that the mere existence of corporate ties or cross-shareholding is insufficient to justify joint liability. Concrete evidence of asset commingling, fraud, or abuse of corporate personality is required:

“The mere existence of an economic group, without asset commingling or abuse of legal personality, does not justify the imposition of joint and several liability.” (STJ, AgRg in AREsp 689.965/SP, Reporting Justice Ricardo Villas Bôas Cueva, judged on 11/10/2015)

“Joint liability among companies of the same group requires proof of patrimonial interpenetration or coordinated conduct that violates legal autonomy.” (TJSP, Civil Appeal No. 1002378-91.2021.8.26.0100, judged on 06/14/2023)

Thus, joint liability among companies is not presumed and requires robust evidentiary support.

5. Procedural Implications: Inclusion in the Proceeding and Due Process

The inclusion of a group-affiliated company as a defendant in enforcement or judgment satisfaction proceedings requires a specific procedural mechanism, which may occur through:

Incident of Piercing the Corporate Veil (Articles 133 to 137 of the CPC), when liability involves subjective elements;

Or a request to extend the obligation, based on the theory of appearance, asset commingling, or economic group rationale—provided that adversarial proceedings and the right to a defense are preserved.

Case law has required specific legal reasoning and documentary evidence of joint operations or shared assets.

6. Risks and Preventive Measures for Business Groups

To avoid improper or unintended liability among companies within the same group, it is recommended to adopt the following:

Strict accounting and asset separation;

Independent corporate governance for each company;

Avoid shared use of resources, personnel, or assets without formal contracts;

Document the autonomy of strategic and operational decisions.

These practices reinforce patrimonial separation and reduce the risk of court-imposed joint liability.

7. Final Considerations

Joint and several liability among companies of the same economic group constitutes an exception to the principle of patrimonial autonomy and must be applied with caution to avoid legal uncertainty and violations of due process. Its admissibility depends on the demonstration of material and functional elements indicating coordinated and harmful conduct—not merely the existence of corporate links.

Professional legal practice—whether in advisory or litigation settings—requires careful attention to applicable legal and jurisprudential criteria, as well as the adoption of sound business practices that preserve the individuality of each corporate entity, even within integrated structures.