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Initially, it is important to highlight that a company's ability to carry out an economic operation is intrinsically linked to the analysis of several stages, with risk assessment being one of its crucial factors. After the decision to proceed with the operation, a new phase emerges: the negotiation of contractual terms. It is clear that consideration of costs, including possible compensation, is a key element in decision-making in order to avoid compromising the operations.

The parties seek valid contractual guarantees that can reduce the risks arising from uncertainties in relation to the eventual interpreter of the contract (be it a judge or an arbitrator), especially in the case of damages that require quantification. A recommended option to reduce possible risks is to include a "limitation of liability clause" in the contract, which provides security and predictability thereto.

The limitation of liability clause is not regulated by any specific legislation, being considered a legally atypical clause, but socially typical. It is extremely important in contracts, allowing the parties to previously establish the limits of their liability in the event of contractual breach or occurrence of damage. This clause provides legal certainty, predictability, and helps to define risk allocation in contractual relationships, being a fundamental instrument for companies seeking to map and manage the risks associated with their operations, thus allowing the presetting of losses and damages fairly and in a well-balanced manner. Furthermore, it is based on the parties' principle of autonomy of will, being a valuable instrument to avoid disputes and ensure the effectiveness of business contracts.

However, the applicability, exceptions, and precautions regarding limitation of liability clauses must be considered with caution. Their inclusion in contracts has become increasingly common to avoid compromising the parties' operations, establishing more realistic financial levels for possible compensation.

The general rule is that the party committing the illicit act must repair the losses and damages to the other party without naming any limitations, as provided for in article 389 of the Brazilian Civil Code . However, there are exceptions, such as legal provisions that provide for the limitation of liability in certain cases, as in article 14 of Law #11,442/2007 , which limits the carrier's liability for losses or damages caused to goods.

There are several types of limitation of liability clauses, with a variety of compositions. In addition to clauses that restrict the amount of compensation, clauses that exempt certain types of damages are also possible, such as moral damages and loss of profits; as well as clauses that exempt liability for delay, or even agreements to restrict compensation only to cases in which the damage is caused by negligence, excluding a possible objective liability regime; or even clauses that equate certain events to the category of "force majeure".

Regarding the validity of the limitation of liability clauses, the Brazilian Superior Court of Justice (STJ) has determined that the clause is valid, based on the parties’ principle of autonomy of will. The STJ confirmed the legality of this clause in a contract signed between a multinational company and a Brazilian company. The case involved an action for material and moral damages filed by the Brazilian company, which acted as representative against the multinational company. The clause that limited the multinational's liability fit into this context. The STJ decided that the multinational would not have to respond for damages beyond the compensation ceiling provided for in the contract, even if the determined amount was higher.

The STJ decision is of fundamental importance to ratify the Superior Court's interpretation on main issues, such as the binding effectiveness of contracts and the freedom of will of the parties. The determination contributes to strengthening the legality of contractual clauses that allow parties, in contracts, to establish losses and damages in advance, through clauses limiting the liability.

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