Thaiane Cardoso
Lawyer at Marcos Martins Advogados Associados
Once a lawsuit has been filed and the Magistrate has verified that the initial petition is in order, he will order that the Defendant be summoned in order to complete the procedural relationship.
Once validly summoned, the Defendant may present his defense in general within 15 days, as established in art. 297 of the Code of Civil Procedure, which states: “The defendant may offer, within 15 (fifteen) days, in a written petition, addressed to the judge of the case, opposition, exception and counterclaim”, with the exception of some special procedures that have different deadlines for manifestation in defense.
The Defendant’s obligation to present a defense is established in our legal system, and failure to do so or its untimely presentation will cause certain consequences.
It should be noted that if the defendant remains silent within the time limit for contesting the claim, he will be in default.
With regard to the summary procedure and the Special Civil Courts, default will be applied when the defendant is absent from the conciliation hearing or the pre-trial hearing, according to art. 278 of the CPC and art. 20 of Law 9.099/1995, respectively.
Luiz Guilherme Marinoni and Sérgio Cruz Arenhart teach on this subject.
Under Brazilian law, there are two situations that can lead to default, each depending on the type of procedure adopted. Thus, in the case of the ordinary procedure, default is triggered by the defendant’s failure to object within the time allowed for defense (art. 319 of the CPC); if the procedure adopted is the summary procedure, then default will result from the defendant’s unjustified absence from the preliminary hearing and failure to present an objection[1].
However, it should be noted that default is only applied to matters of fact, and it is up to the judge to analyze whether the matter of law alleged by the plaintiff should be upheld.
In effect, the decree of default will generate certain consequences, which are set out in articles 319 and 322 of the Code of Civil Procedure.
What is established in article 319 of the CPC is that the facts asserted by the Plaintiff are deemed to be true.
In addition, any defaulting party who does not have a lawyer on file will be subject to time limits regardless of whether they have been summoned for each of the actions taken.
It can be seen that default has undesirable effects on the defaulting party; however, its decree does not imply that the claim will be upheld. It will be up to the magistrate to weigh up the facts narrated in the petition against the evidence produced in the case file in order to form his own conviction, since the presumption of veracity arising from default is merely relative and not absolute.
Furthermore, it is important to remember that the Code of Civil Procedure establishes exceptions to the application of the effects of default, which are: (i) if there is a plurality of defendants, any of them contest the action; (ii) if the dispute deals with unavailable rights; (iii) if the initial petition is not accompanied by the public instrument, which the law considers indispensable for proof of the act.
If there is a joint liability and one of the Defendants comes forward with a defense, the common facts will be used by the Defendant in default, insofar as it is entitled to do so.
With regard to unavailable rights, the CPC expressly states that these may not be confessed (art. 351), which is why a false confession of fact will not be accepted.
Costa Machado teaches that
Unavailable rights are those rights whose realization is of interest to the very survival and maintenance of society, to the very existence of the state, even though their holders are private individuals (family law, personality rights, etc.). Public rights, as a general rule, are unavailable (administrative law, criminal law, social security law). Unavailable rights, technically, are those that find legal regulation in the so-called public order laws and whose basic characteristics are as follows: inalienability, unassignability, non-renounceability, unseizability, non-subject to judicial recognition in the process and to confession and mandatory realization in many cases (hence the granting of active legitimacy to the Public Prosecutor’s Office to bring the action – art. 81). [2]
As an example of this second hypothesis, we can say that the effects of default do not apply in paternity investigations or maintenance actions, since they deal with unavailable rights.
Finally, there is the third hypothesis in which default does not apply, when the Statement of Claim is not accompanied by public instruments that the law considers indispensable for proof.
In view of this, it can be concluded that default generates certain effects for Defendants, but is mitigated in some cases expressly provided for by law.
In this context, it is important to add that matters of public policy prevent default from being applied. On this subject, the Courts have expressed their views as follows:
CIVIL APPEAL. MAINTENANCE ACTION. REVELIA. UNAVAILABLE RIGHTS. PRESUMPTION OF VERACITY OF THE FACTS NARRATED IN THE INITIAL STATEMENT. NO OCCURRENCE. The defendant’s default does not lead to a presumption of veracity of the facts narrated in the statement of claim (item II of art. 320 of the CPC). In actions that deal with maintenance – an unavailable right – the lack of an objection does not lead to a presumption of veracity of the facts narrated in the initial Appeal dismissed. (Civil Appeal No. 70047720180, Seventh Civil Chamber, RS Court of Justice, Rapporteur: Munira Hanna, Judged on 22/05/2013)
COLLECTION ACTION. CONDOMINIUM DUES. JUDGMENT DECLARING THE DEFENDANT IN DEFAULT AND UPHOLDING THE CLAIM. PRESCRIPTION. MATTER OF PUBLIC POLICY. PARTIAL REFORM OF THE JUDGMENT. 1 – The matter of statute of limitations is a matter of public policy, which is why it can be heard at any time and at any level of jurisdiction, including ex officio, and is therefore not subject to the effects of default. 2 – The claim for condominium dues, which arose under the Brazilian Civil Code of 2002, is time-barred in five (5) years from the due date of each installment. This is because the claim, being a liquid debt and backed up by physical documents, falls within the provisions of article 206, paragraph 5, item I of the Brazilian Civil Code of 2002. Precedents of the STJ and TJERJ. 3 – Since the lawsuit was filed on 21/02/2013, the statute of limitations on the claim for collection of condominium bills prior to March/2008 should be recognized. 4 – PARTIAL GRANT OF THE APPEAL. (TJ-RJ – APL: 00076242020138190203 RJ 0007624-20.2013.8.19.0203, Rapporteur: DES. CARLOS SANTOS DE OLIVEIRA, Date of Judgment: 10/03/2014, VIGÉXIMA SEGUNDA CAMARA CIVEL, Date of Publication: 08/04/2014)
Thus, it is concluded that default will be imputed to the Defendant who remains inactive at a time of utmost importance for his defense. The effects applied when default is established are, as a rule, capable of guaranteeing a judgment favorable to the Plaintiff, but it is up to the Magistrate to be governed by the principle of proportionality, weighing the burden imposed on the Defendant and the benefit brought by the presumption of veracity of the facts alleged by the Plaintiff, since it is a relative presumption.
[1] MARINONI, Luiz Guilherme; ARENHART, Sérgio Cruz. Processo de conhecimento. 8. ed. São Paulo. Revista dos Tribunais, 2010, p. 120.
[2] MACHADO, Costa. Code of Civil Procedure Interpreted. Manole: 2004, p. 462
