Cláusula de sandbagging à luz dos princípios fundamentais do direito contratual brasileiro

Abstract

This paper aims to analyze the sandbagging in the context of mergers and acquisitions (M&A) in light of the fundamental principles of Brazilian contract law. The study explores the origins of the concept within the common law system and examines its compatibility with the principles of objective good faith, the duty to inform, private autonomy, and the prohibition of abuse of rights. The sandbagging clause allows the buyer to seek indemnification even when aware, prior to closing, of inaccuracies or misrepresentations in the seller’s statements, raising debates about its validity and applicability under Brazilian law. The research concludes that the clause may be accepted within the Brazilian legal framework, provided that the ethical and legal limits imposed by good faith and the social function of the contract are respected, serving as a legitimate risk allocation mechanism when used in a balanced and transparent manner