Every jurisdiction has its own rules and strategies for the easier enforcement of contractual obligations. The Brazilian system is no different. It has peculiar requirements and strategies that can make things substantially easier for those seeking to enforce their rights. Below we consider some of the key formalities and tactics that generally lead for faster enforcement.

Include two witnesses in the agreement, initial every page and have all signatures notarised

Brazil’s rules of civil procedure set different paths for litigating contractual obligations. If certain requirements are met, a party will be allowed to proceed directly to enforcement proceedings (processo de execução), which is a more expeditious method of enforcing contractual rights.

Various types of obligations, such promissory note, cheque or mortgage, are regarded as ‘extrajudicial enforcement titles’ (títulos executivos extrajudiciais (TEE)). Also regarded as TEEs are written contracts that contain the signature of the party in breach as well as that of two witnesses.

There are basically no major formalities regarding the witnesses to the contract. As long as two witnesses sign the document next to their respective names, the court will accept that the contract should proceed immediately to enforcement. This applies even to bilateral agreements, as long as there is no evidence that the party seeking to have its rights enforced is not in breach of the contract.

For a plaintiff to proceed directly to enforcement, the plaintiff must attach the contract to the pleadings. Without the contract there is no TEE (this is a consequence of the Roman principle nulla executio sine titulo – no enforcement without a title). Moreover, the calculation of the alleged liquidated debt, evidence of the breach and evidence of the plaintiff’s performance of its obligations must be attached to the pleadings.

Apr-Jun 2017 issue

Deffenti e Queiroz Advogados