The principle of the social function of contracts does not authorize the Public Administration to disregard clauses and fails to pay the private entity for the well-being of the population.
With this understanding, the 6th Public Law Chamber of the São Paulo Court of Justice condemned the Hospital das Clinicas and the Medical School Foundation, both within the USP, to indemnify a company at $ 260,000 by irregular use of their software and to pay $ 65,000 for each month that have still used the program after the quote.
In 1990, Matrix Systems and Services implemented in the hospital laboratory information system MXM / LAB. In later contracts, Medical School Foundation was included as part and started to pay to the use of the software license. However, in 2003, near the end of the contract, the company was informed that Prodesp assume the hospital laboratory management.
After that, the license MXM / LAB use was not renewed . However, the hospital and the Foundation continued to use the program without paying the Matrix so. The company sued the unlicensed use of the system, asking for their destruction and all copies, in addition to compensation for property damage.
In its defense, the Foundation claimed that made the agreement with the hospital to use software in order to provide better service to the poor, given the principle of good faith. The organization also pointed out abuse of power of the Matrix, which would have been advised that the contract would not be extended, by its high cost.
But the hospital argued that the equipment used for the system does not belong to the company, and that costs always hurt the hospital. In addition, the hospital argued that the Matrix not offered maintenance services and practiced abuse of economic power to threaten the shutdown of its services.
missing Questions
The trial judge accepted the requests of the company. The Foundation and the hospital appealed to the TJ-SP, but Judge Sidney Roman dos Reis, if the rapporteur, said that “there are no doubts” that the entities used the MXM / LAB after termination of the contract, restricting them to the fitness or not the values pursued by the company.
According to Reis, there is insufficient evidence to demonstrate the reckless attitude of the alleged Matrix by public authorities. This is because the price adjustments have always been close to the official inflation index, and were previously detailed in commercial proposals. The judge also pointed out that the company notified the FFM and the HC illegal use of the program, but they did nothing about it.
As for the claim that the software destruction undermine the service to the population, the reporter noted that the institutions had 14 years to provide a system that enables archive data securely.
“However, it seems, chose the required, the way” easy “the breach of contract issues the right to own property, expropriating the improper and indiscriminate use of the Matrix Systems company property information system use permit “examined Kings.
He said the state should be guided by good faith in their actions, and “the alleged service of the public interest can not serve as a means of illicit locupletamento Public Administration, exempting it from the payment of the consideration due you know.” Thus, Kings upheld the conviction of the hospital and the Foundation indemnify Matrix R $ 260 thousand to pay $ 65,000 per month to continue using the program.
For the lawyer responsible for defes the Matrix, Fernando Lottenberg , the Lottenberg Advogados Associados, entities used the service to the population as a pretext for not paying the company.
“The TJ-SP, in confirming the first instance decision on the merits, decided that the public interest can not be an excuse to comply with obligations entered into by the parties. The HC and the FFM abused their status as public agencies serving the poor to deny the Matrix rights that the contract assured him, “opined Lottenberg.
Click here to read the full text of decision of the TJ-SP.
Civil Appeal 0800181-67.2004
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