PRECLUSION IN BRAZILIAN CIVIL PROCEDURE: CONCEPT, TYPES, AND LIMITS UNDER THE 2015 CODE OF CIVIL PROCEDURE AND THE TREATMENT OF ASTREINTES

Preclusion is a procedural mechanism of great relevance in the Brazilian legal system, designed to ensure stability, predictability, and efficiency in litigation. The 2015 Code of Civil Procedure reaffirmed its importance, especially in the context of procedural cooperation and good faith. This article analyzes the concept, types, and limits of preclusion, with emphasis on the doctrine of Pontes de Miranda, and discusses its inapplicability to coercive fines (astreintes), which are not subject to the classical preclusion framework, as per the consolidated understanding of the Superior Court of Justice (STJ).

The procedural organization of civil proceedings requires clear rules defining the appropriate timing for procedural acts. Within this framework, preclusion emerges as a mechanism of procedural order that prevents regressions, disruptions, and undue repetitions. However, not all acts or procedural effects are subject to this regime, as is the case with astreintes, whose coercive nature allows for review even after a final judgment.

1. Concept and Purpose of Preclusion

Preclusion refers to the loss of the procedural opportunity to perform an act due to omission, prior conduct, or an incompatible procedural behavior. It is a technique aimed at stabilizing procedural phases, preventing the perpetuation of the process and ensuring an orderly progression.

Pontes de Miranda, in his Treatise on Private Law, Volume VI, explains:

“Preclusion operates as a consequence of the procedural sequence, of the need for continuity in procedural acts, and of the requirement that each phase of the process produces its effects without retroactivity, as the process cannot halt for the litigants to go back.”

2. Types of Preclusion

The 2015 Civil Procedure Code establishes three main types of preclusion:

·         Temporal preclusion: loss of the procedural faculty due to the lapse of a deadline.

·         Consumptive preclusion: the right is exhausted once the act is performed.

·         Logical preclusion: arises from the performance of an act incompatible with another.

Pontes reinforces:

“Preclusion is not a penalty; it is the legal consequence of omission or of an act performed outside its proper procedural context. The process does not go backward.” (op. cit., p. 237)

3. Preclusion and Constitutional Principles

Preclusion must be interpreted in harmony with the principles of adversarial proceedings, full defense, and procedural cooperation. In exceptional situations—such as party vulnerability or excusable mistake—preclusion may be relaxed.

4. Astreintes and Preclusion: A Conceptual Incompatibility

Astreintes are coercive measures regulated by Article 537 of the 2015 Code. Although established by interlocutory decisions, their function is to compel compliance with court orders, and no res judicata arises regarding their amount.

The STJ firmly holds that preclusion does not apply to astreintes:

“Astreintes may be reviewed at any time, even after the final judgment of the decision that imposed them; hence, preclusion does not apply.” (REsp 1.333.988/SP)

Their revision may occur:

·         Ex officio;

·         At the request of a party;

·         Even after delayed compliance with the obligation.

Article 537, §1 of the Code expressly authorizes such modification:

“The judge may, ex officio or at the request of a party, modify the amount of the fine to accrue or suppress it if it becomes insufficient or excessive.”

5. Classical Doctrine and Effectiveness

Although written prior to the formal regulation of astreintes, Pontes de Miranda advocated that judicial decisions must not become rigid obstacles to procedural effectiveness:

“The effectiveness of the process lies in its capacity to adapt to supervening realities. Rigid formalism cannot be allowed to jeopardize the justice of judicial relief.” (Volume VI, p. 237)

Conclusion

Preclusion is essential to legal certainty, but it is not absolute. Due to their instrumental and coercive nature, astreintes are not bound by its rigidity.

Contemporary civil procedure, guided by principles of cooperation, good faith, and effectiveness, requires judges to distinguish between procedural stability and undue rigidity. The revision of astreintes should be permitted whenever their value becomes disproportionate or detached from their intended purpose.