A responsabilidade civil do administrador e do gestor por danos ao fundo de investimento

Abstract

The main purpose of this work is to investigate and describe the elements and guide-lines that compose the system of civil liability of the administrators and managers of invest-ment funds for damages caused to the funds. Considering that purpose, I start by providing an overview of the main aspects of the legal framework of investment funds in Brazil, including the description of the most relevant concepts related to the theme, with focus on the parties of the underlying relationships: the investors, the administrator and the manager of the investment fund. Then I present a review of the precedents forming the Brazilian Superior Court of Justice’s jurisprudence (STJ, the highest court for non-constitutional matters), which is settled in the sense that the referred agents would have a “consumer relation”, bringing application of the Brazilian Consumer Defense Code (CDC). I then carry out a critical evaluation of the mentioned jurisprudence, followed by analysis of the applicability of the CDC to the relationships in question by the method I deem most fitting: verification of whether the investors can be legally classified as consumers, while the investment fund’s administrator and manager can be considered suppliers. Furthermore, I examine the possible incompatibility between the precepts of the civil liability of the mentioned agents introduced in the Brazilian Civil Code by the Law of Economic Freedom (Law No. 13.874/2019) and public policy provisions of CDC. Based on these tenets, the rest of the work presents the system of civil liability of the administrator and portfolio manager for damages caused to the fund. For this purpose, I discuss institutes of the general theory of civil liability, followed by their application to the contractual relationships pertaining to investment funds. Among the topics addressed are the civil liability of the administrator and manager regarding the relationship between the parties (whether contractual or extracontractual) and the form of its assessment (subjective or objective), the nature of the means or results of the obligations of the administrator and manager, and discussion of the joint and several nature of their liability. I also cover some related topics, such as the civil liability of the officers in charge of certain functions, the responsibility for the obligations undertaken by the administrator or manager on behalf of the fund and, also, the time-bar on suits to redress damages. At the end, I summarize the main conclusions attained in the work.