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Effects of default: its occurrence and estoppel in the Brazilian legal system



This article aims to analyze the effects of default in the Brazilian legal system, considering its occurrence and estoppel. Default occurs when the defendant does not present a defense or does not appear in the case, generating consequences in relation to the production of evidence, presumption of veracity of the facts alleged by the author and granting of procedural benefits. In this study, a survey will be carried out of the main legal provisions and jurisprudential understandings, both infra-constitutional and infra-constitutional, that address the matter.

 

 

In the Brazilian legal system, by default is a situation that occurs when the defendant does not present a defense or does not appear in the case, resulting in consequences that vary according to current legislation. Default is a relevant topic in the legal context, both for the doctrinal field and for the practical actions of legal professionals. In this article, an analysis will be made of the effects of default, considering its occurrence and estoppel, based on infraconstitutional and infraconstitutional grounds.

 

 

1. Concept of default and its occurrence

Default occurs when the defendant does not offer a defense or does not appear in the case within the legal deadline. In this scenario, the process continues normally in relation to the plaintiff, without the need to wait for the defendant's defense. The most fundamental legal provision that deals with default is article 344 of the Code of Civil Procedure, which establishes the effects arising from the lack of defense.

 

2. Effects of default on civil proceedings

- Presumption of veracity: one of the main effects of default is the presumption of veracity of the facts alleged by the author. Those factual and legal aspects alleged in the initial petition are now presumed to be true, except in cases where the law establishes otherwise.

 

- Burden of proof: with default, the burden of proof is reversed. This means that the plaintiff will not need to produce evidence about the facts alleged in the initial petition, and it will be up to the defendant to try to prove the opposite.

 

- Procedural prerogatives: the defaulting defendant may have his rights curtailed in relation to procedural prerogatives, such as taking a personal statement from the plaintiff, producing testimonial evidence and presentation of expert questions.

 

3. Preclusion of default

Preclusion is the loss of a procedural faculty, occurring in various situations provided for by law. In the specific case of default, there are limits to the application of the effects of non-challenge. For example, the defendant in default may manifest himself at a later time, before the sentence is handed down, requesting the performance of a certain procedural activity or specifically contesting some of the facts alleged by the author.

 

4. Applicable jurisprudence

The jurisprudential practice in relation to the effects of default is diverse. Some courts understand that, even in default, it is necessary for the author to produce evidence to support the alleged facts. Other courts adopt the position of absolute presumption of veracity of the facts alleged in the initial petition. The analysis of these jurisprudential positions is essential to guide the actions of legal practitioners in specific cases.

 

Conclusion:

 

Default is a procedural institute that brings relevant effects to the Brazilian legal system. Its effects may vary according to current legislation and the doctrinal and jurisprudential interpretation applied. It is important that legal professionals are aware of the effects of default and its estoppel, in order to guarantee the correct application of the law and respect the fundamental principles of civil procedure.

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