Preposto (Legal Representative)

1. Definition, Concept, and Legal Nature

The preposto is the natural person designated by the principal (usually a company or employer) to replace them in the exercise of certain activities or to represent them in specific acts, possessing the power to express the will of the represented party and bind them legally. Classical doctrine, under the guidance of Maria Helena Diniz and Silvio de Salvo Venosa, defines the preposto as an auxiliary dependent on the entrepreneur, acting under their authority, either on a permanent or occasional basis.

The legal nature of the institution is that of voluntary representation, configured as a form of mandate or commission, depending on the established contractual link. In the scope of Civil Law, the relationship is governed by the concept of preposição (agency); in Labor Law, it is characterized by the procedural or administrative substitution of the employer. It is important to emphasize that the preposto is not an organ of the legal entity, but an agent with powers delimited by law or contract.

2. Historical Origin and Evolution in Law

Historically, the figure of the preposto dates back to Roman Law, specifically to the figures of the institor (manager of a land-based business) and the exercitor (shipowner). In these figures, the principal was liable for the obligations contracted by their auxiliaries through the so-called actiones adiecticiae qualitatis, which allowed third parties to demand directly from the master or employer for the acts of their subordinates.

In Comparative Law, the French Civil Code (Napoleonic Code) consolidated the master's liability for the acts of their servants and agents, a principle that influenced the Brazilian Civil Code of 1916 and was refined in the 2002 Civil Code. The evolution of the institution followed the complexity of production relations, migrating from a purely domestic view to a technical and strategic function within modern corporate governance.

3. Exact Legal Provision

The legal foundation of the preposto in the Brazilian legal system is multifaceted:

• Civil Code (Law No. 10.406/2002): Articles 1,169 to 1,178 regulate the figure of prepostos in the scope of Business Law. Art. 1,172 establishes that "the preposto may not, without written authorization, be replaced in the performance of their duties." Furthermore, Art. 932, item III, establishes the strict civil liability of the employer or principal for the acts of their agents.
• Consolidation of Labor Laws (CLT): Art. 843, § 1º, provides for the employer's right to be replaced by a manager or any other preposto who has knowledge of the facts. § 3º of the same article (included by Law 13.467/2017) innovated by determining that the preposto does not need to be an employee of the respondent party.
• Consumer Defense Code (Law No. 8.078/1990): Art. 34 establishes the joint liability of the supplier of products or services for the acts of their agents or autonomous representatives.
• Special Civil Courts Law (Law No. 9.099/1995): Art. 9º, § 4º, authorizes the defendant to be represented by a preposto with powers to settle.

4. Practical Application and Jurisprudential Understanding

The practical application of the preposto is verified daily in judicial hearings. In the Superior Labor Court (TST), the interpretation of the institution underwent a drastic change with the 2017 Labor Reform. Previously, TST Precedent No. 377 required the preposto to be an employee, except for domestic worker claims or against micro and small entrepreneurs. Currently, with the validity of § 3º of Art. 843 of the CLT, the requirement for an employment bond has been abolished.

In the Superior Court of Justice (STJ), the jurisprudence is peaceful regarding the Theory of Appearance. According to this understanding, a citation or summons made to a person who, on company premises, presents themselves as a preposto is considered valid, even if they do not possess formal powers of management or representation in the articles of incorporation, prioritizing the good faith of third parties (AgInt in AREsp 1634567/SP).

Regarding civil liability, the STF and STJ apply the strict liability of the principal (STF Precedent 341: "The fault of the employer or principal for the culpable act of the employee or agent is presumed"), which implies that the victim does not need to prove culpa in eligendo or in vigilando of the principal, only the proof of damage and the causal link arising from the agent's act in the exercise of work.

5. Related Principles and Doctrinal Divergences

The institution is governed by the principles of Trust, Objective Good Faith, and Procedural Effectiveness. A relevant divergence lies in the extent of the "knowledge of the facts" required by Art. 843, § 1º of the CLT. Part of the doctrine argues that the preposto must have witnessed the facts (direct knowledge), while the majority current and current jurisprudence admit hearsay (indirect knowledge), provided that the preposto is confident enough to testify and bind the company with their statements.

Another point of debate is the figure of the "professional preposto" or "hired preposto." Critics argue that the absence of an employment bond may weaken the search for the real truth, since the outsourced agent might have technical knowledge but be detached from the factual reality of the company's daily operations.

6. Contemporary Relevance and Practical Impacts

The modernization of the institution is evidenced by the admission of the Digital Preposto. With the virtualization of procedural acts and the holding of hearings via videoconference (CNJ Resolution 354/2020), physical presence has been replaced by telematic presence. This requires the preposto to possess not only knowledge of the facts but also a minimum mastery of technological tools to ensure the validity of the procedural act.

The most significant practical impact lies in corporate risk management. The preposto's statement in court constitutes a fictitious or real confession (Art. 385 of the CPC), which can determine the outcome of high-value litigation. Thus, the selection and training of the preposto have ceased to be mere administrative formalities and have become crucial elements of corporate legal strategy.

Legal and Jurisprudential References

• BRAZIL. Law No. 10.406, of January 10, 2002. Civil Code.
• BRAZIL. Decree-Law No. 5.452, of May 1, 1943. Consolidation of Labor Laws.
• BRAZIL. Law No. 13.467, of July 13, 2017. Amends the Consolidation of Labor Laws (CLT).
• STF. Precedent No. 341. Civil liability of the employer or principal.
• STJ. Precedent No. 302 (Analogy regarding liability).
• TST. Precedent No. 377 (With the reservations of the 2017 Labor Reform).
• STJ. AgInt in AREsp 1634567/SP. Theory of Appearance and validity of acts by an agent.