Opt-Out Clause Is Not a Blank Check under Good Faith Lens

Abstract

This paper is a case study of the final decision taken in the case M & F × Bank Santander, et al. (RE n°1.555.202-SP/Brazilian Superior Court of Justice). It intends to answer two questions: whether it is reasonable to repudiate—as the Court did—the termination written clause of the contract signed by the Parties in the light of good-faith principle; and, assuming Bank Santander violated such principle when trying to terminate the contract, what the proper remedy due is. Our findings demonstrate that the Court did a good job by repudiating the termination written clause on good-faith grounds, but failed to stipulate a correct indemnity.