At the end of September 2023, in Special Appeal No. 2,048,957 MG, the Superior Court of Justice – STJ determined that there would be no obligation on the gas supplying company to provide the buyer with the difference between the minimum quantity of gas supply contracted and the one effectively used in contracts that contain a take or pay clause.

The STJ clarified that such clause, despite being imported from foreign law, is very common in continuous supply contracts and its purpose is (i) to guarantee the flow of revenue for the supplier,  (ii) to allocate risks between the parties –the supplier assumes the price risk, while the buyer assumes the demand risk and (iii) ensure the return on investments made.

In this sense, the STJ corroborated the Court’s understanding, clarifying that:

• If there is use greater than the minimum contracted quantity, the price to be paid will correspond to the demand actually consumed, and the take or pay clause shall not be applicable;
• If there is use equal to or less than the minimum quantity stipulated in the contract, the price to be paid shall correspond to the pre-established price for the minimum quantity, according to the take or pay clause, regardless of consumption;
• There is no illicit enrichment on the part of the supplier in the case of the applicability of the take or pay clause;

As it is a continuous supply contract, in the subsequent period, the buyer shall not be entitled to receive the difference between the minimum quantity, for which it had paid, and the amount actually consumed, which had been lower than the minimum quantity, under penalty of ineffectiveness of the take or pay clause.