Although it has been recognized in Brazil’s legal system for many years, the institute of the procedural legal deal (NJP) had its adoption formalized and systematized only with the new Code of Civil Procedure (Federal Law No. 13,105/15 - CPC).
From the perspective of autonomy of will, the head paragraph of article 190 of the CPC expressly provides, in the causes that deal with rights that admit voluntary settlement, that it is lawful for the parties to stipulate changes in the procedure, to adjust it to the specificities of the dispute, and to agree on burdens, powers, prerogatives, and procedural duties, in a preparatory or incidental manner.
In the words of Fredie Didier Junior,[1] the NJP is "the voluntary legal fact, which grants factual support for the litigant to be granted the power to regulate, within the limits set in the legal system itself, certain procedural legal situations or change the procedure". Adriana Buchmann affirms the NJP as "instrument of instruments" inasmuch as it is a kind of "agreement entered into in the midst of discord, but not as an equation of it, but with the sole need to organize the terms in which the deal will take place".
From the moment it is entered into, provided it is lawful, precise, and determined, regardless of any judicial approval, the NJP already produces its due effects. In fact, in the NJP, "the judicial evaluation takes place after the case dealt with has been consummated, and is not presented as a requirement for its improvement, but only to verify its legality".[2]
As an instrument resulting from the autonomy of the parties' will, the NJP is not subject to the judge's assessment of suitability. So much so that the sole paragraph of article 190 of the CPC provides that the terms of the NJP will only have their application prevented "in cases of nullity or misuse in an adhesion contract or where any party is in a clear situation of vulnerability". The interference of the Judiciary, according to the CPC, would only be possible in these scenarios.
Recently, the Superior Court of Appeals (STJ) reinforced this understanding upon deciding REsp No. 1,810,444/SP, decided by the 4th Panel with Justice Luis Felipe Salomão drafting the opinion. It was established that, "when the exclusive prerogatives and interests of the parties are at stake, it will be up to the judge to interfere only to supervise their legality". And concluding: "if, however, in some way, the convention entails restriction or conditioning on the judge’s legal situation, it is intuitive that the deal will only be validly consummated if the judge himself acquiesces".
The STJ denied relief to the special appeal brought, on the grounds that the subject matter of the NJP transcended the limits for which the concept was conceived. In that case, the parties agreed that if a certain debt were to be in default, "the creditor would be authorized to obtain an injunction freezing the debtor party's financial assets, 'on an ex parte and without the need to post a bond".
The 4th Panel of the STJ, maintaining an understanding of the Court of Appeals of the State of São Paulo (TJSP), denied relief to the special appeal because it found that the subject matter of the NJP was deferral of the adversarial process to a moment after the analysis and assessment of the interim remedy of freeze if assets, which, at least in this case, sounded like a direct affront to the powers and acts inherent to the magistrate , among them the general power of discretion.
Highlighting the case of a transaction involving the adversarial process does not make one of the parties vulnerable, which will necessarily require a case-by-case assessment of the situation under discussion, the judgment established that "every time suppression of the adversarial process leads to an inequality of weapons in the case, the procedural deal, or the clause that provides for such a situation, should be considered invalid".
As can be seen, the STJ has not completely ruled out the possibility for the parties signing an NJP that aims to discuss aspects related to the adversarial process. For the High Court, provided that "the transaction about the adversarial process does not make one of the parties vulnerable, given the peculiarities of the case, it is possible to recognize its validity". Given what was decided in REsp No. 1,810,444/SP, the vulnerability or lack thereof of one of the parties should require prior and targeted analysis.
There are other decisions that have been discussing the limits and guidelines of NJPs. The TJSP, for example, on some occasions, has already rejected the possibility for the parties to establish NJPs that have the purpose of agreeing on:
- clauses electing foreign jurisdictions (AI No. 2094625-02.2017.8.26.0000[3] and 2127099-89.2018.8.26.0000);[4]
- service of process by delivery of a letter with acknowledgement of receipt at the defendant's address, without the need for a personal signature of the defendant (AI No. 2281669-96.2019.8.26.0000);[5]
- judicial seal (AI No. 2030704-64.2020.8.26.0000);[6] and
- percentage of attorneys' fees in litigation (AI No. 2096891-20.2021.8.26.0000).[7]
Are the above cases found within the scenarios in which the judiciary should interfere in NJPs? Or rather, would the subject matters of these transactions be, in fact, based on the premise established in the sole paragraph of article 190 of the CPC and corroborated by the STJ in REsp No. 1,810,444/SP, interfering in some way with the powers inherent to the judge or, still, contributing to a possible and inapposite vulnerability of one of the parties? The answer to these questions is unknown, since the case law has not yet presented a settled position on the guidelines for NJPs.
[1] DIDIER JR., Fredie. Civil Procedural Law Course: general part and the cognizance process. 20 ed. Salvador: JusPodivm, 2018, p. 439.
[2] THEODORO JR., Humberto. Course of civil procedural law. v. 1. 59. ed. (2. Reimp.) rev., current. and expanded, Rio de Janeiro: Forense, 2018, p. 502.
[3] TJ/SP, Interlocutory Appeal No. 2094625-02.2017.8.26.0000, Opinion drafted by Appellate Judge Hélio Nogueira, 22nd Chamber of Private Law, decided on September 21, 2017, DJe October 6, 2017.
[4] TJ/SP, Interlocutory Appeal No. 2127099-89.2018.8.26.0000, Opinion drafted by Appellate Judge Jairo Brazil Fontes Oliveira, 15th Chamber of Private Law, decided on October 6, 2020, DJe October 7, 2020.
[5] TJ/SP, Interlocutory Appeal No. 2281669-96.2019.8.26.0000, Opinion drafted by Appellate Judge Almeida Sampaio, 25th Chamber of Private Law, decided on January 28, 2021, DJe February 2, 2021.
[6] TJ/SP, Interlocutory Appeal No. 2030704-64.2020.8.26.0000, Opinion drafted by Appellate Judge Cesar Ciampolini, 1st Chamber Reserved for Business Law, decided on August 20, 2020, DJe August 20, 2020.
[7] TJ/SP, Interlocutory Appeal No. 2096891-20.2021.8.26.0000, Opinion drafted by Appellate Judge Ana Lucia Romanhole Martucci, 33rd Chamber of Private Law, j. May 18, 2021, DJe May 18, 2021.
