Title: A cláusula pro-sandbagging (conhecimento prévio) em contratos de alienação de participação acionária
Abstract: In Brazil, many contracting parties have adopted contractual structures that are very similar to those of Common Law countries, especially to the United States and the United Kingdom.In this dissertation, we analyze brazilian law's reception of one of the clauses of such contracts, namely, the pro-sandbagging clauses.Buyers use this clause to reassure that their post-closing remedies arising out of representations and warranties clauses will not be affected by any knowledge of their inaccuracy, incompleteness or falsehood acquired before closing.Thus, in order to study how buyer's remedies are affected by pro-sandbagging clauses, we need to contextualize in which the contractual structures the parties insert representations and warranties, and, after, we need to analyze to which brazilian legal frameworks representations and warranties may be assimilated, and what are the respective remedies that the inaccuracy, incompleteness or falsehood of the representations and warranties generate.Only after this base is settled, we may proceed to analyze in which way buyer's pre-closing knowledge may affect its post-closing remedies in any of those legal frameworks.We are of the opinion that pro-sandbagging clauses may affect obligational consequencessuch as breach of warranty or other specific contractually provided consequences, such as price adjustmentof the representations and warranties, but other remedies such as erro, dolo, vícios redibitórios remain unaffected.Subsequently, we describe academic discussions concerning pro-sandbagging clauses, in two parts.In the presence of a pro-sandbagging clause, we describe arguments in favor or against the legality of this clause.In the absence of any sandbagging clausei.e., the default rule -, we describe arguments in favor or against the legality of this clause.Eventually, we analyze the main arguments against the lawfulness of such clase, such as infringement of good faith's duty to disclose, of the prohibition of contradictory behavior (venire contra factum proprium), of the prohibition fraudulent misrepresentation by informative omissision (omissão informativa dolosa).We also analyze the idea that if a buyer proceeds to closing knowing, beforehand, the falsehood, inaccuracy and incompleteness of representations and warranties, she is, for this exact reason, waiving its post closing remedies.We conclude that, in many occasions, as a rule, the seller remains subject to negative obligational consequencesfor instance, breach of warranty or price adjustment to a lower amountand that only in very specific situations, within specific criteria, not easily verifiable, buyer's pre-closing knowledge will affect its post-closing remedies.Or if the parties decide so.