The Fourth Panel of the Superior Court of Appeals (STJ) completed in August the judgment of Special Appeal (REsp) 1.837.386/SP, in which it was litigated whether the promulgation of Precedent 326 of the STJ[1], based on the Code of Civil Procedure of 1973 (CPC/73), would conflict with the wording of article 292, V, of the Code of Civil Procedure (CPC) in force.[2]
Among the provisions submitted for analysis by the court in the REsp,[3] article 86 of the CPC merits attention, according to which the parties must bear, proportionally, the case costs and the attorneys' fees in the event of reciprocal loss of suit.
According to the recent understanding of the STJ, established on the occasion of the judgment of REsp 1.837.386/SP, in actions for compensation for non-economic damages, even if the amount of the compensation awarded by the judgment is miniscule if compared to the amount indicated in the complaint, "there is no question of loss of suit for the plaintiffs, who were victorious in their claim for compensation," which reinforces the content set forth in Precedent 326.
This is because the plaintiff would be allowed to formulate a claim for compensation for non-economic damages in an estimated manner, such as, for example, using "generic formulas like 'compensation not less than', without an award in an amount higher than his estimate qualifying as an ultrapetita decision."
The discussion submitted to the STJ is old and subject to divergence. On one side, there are those who, in the legal scholarship[4] and in the case law,[5] defend maintenance of the validity of what is stated in the precedent. Considering that the judge, in theory, is be bound to the amount requested in the complaint to fix the quantum of the compensation, the understanding would prevail that, if the request for compensation for non-economic damages is granted, even if in an amount lower than that requested, there would be no partial or reciprocal loss of suit between the parties.
In this sense, although article 292, V, of the CPC expressly requires that a claim for non-economic damages be quantified and determined by the plaintiff when the suit is filed, the total loss of suit would fall to the defendant, since the amount indicated in the complaint for the award of compensation for non-economic damages would be merely an estimate.
From the point of view of constitutional law, the first current seeks to protect full access to Justice (article 5, XXXV, of the Federal Constitution), as it finds that the risk of the party incurring costs for loss of suit, in the case of partial acceptance of the claim for compensation, may inhibit the filing of suits seeking compensation for non-economic damages. In practice, this happens not infrequently, since the amount of compensation is derived from the subjective assessment of the judge.
In line with the understanding held by the STJ when ruling on REsp 1.837.386/SP, it would be inconsistent to impose a burden for loss of suit on plaintiffs who won a suit for compensation for non-economic damages, since, depending on the situation, the amount of the compensation set by the court could even be lower than the attorneys' fees imposed on the winner in the claim.[8]
Thus, by upholding the understanding set forth in Precedent 326, the STJ demonstrates its concern for the potential legal effects and consequences that would result from a possible overruling of said precedent, as provided for in article 21 of the Law of Introduction to the Norms of Brazilian Law (LINDB).[9]
On the other hand, as to the second trend, it is impossible to ignore that the CPC is explicit in requiring the plaintiff to present a certain and determined claim in “actions for compensation, including those based on non-economic damages", not allowing generic or estimated requests. Although we recognize the existence of legal authorization in article 324, paragraph 1, II, of the CPC for the formulation of a generic claim, "when it is not possible to immediately ascertain the consequences of the act or fact", this scenario does not apply to claims for non-economic damages.
This is because, even though the instability of the case law is undeniable, the courts, especially with the advent of the internet, have ample access to countless parameters to quantify claims for compensation according to the concrete case, as seen in case research in the courts of all the states in the federation, preparation of legal studies, among others.
Even if the judgment does not establish the exact amount of damages requested in the complaint, the judge should evaluate whether, in the concrete case, the plaintiff lost in a minimum part of the claim that would justify an exclusive judgment against the defendant for the costs for loss of suit, as provided for in the sole paragraph of article 86 of the CPC.
This interpretation honors the system provided for in article 7 of the CPC, assuring the parties exercise of the adversarial process, inasmuch as, in addition to allowing the defendant to discuss the extent of the amount sought by the plaintiff, it prevents irresponsible claims for compensation for non-economic damages due to the possibility of partial loss of suit.
Except in the case provided for in the sole paragraph of article 86 of the CPC, it seems reasonable that the percentage of the fees for loss of suit to be awarded in favor of the defendant's lawyer should observe the economic benefit obtained, reached by the difference between the excessive amount claimed and the amount awarded in the judgment as non-economic damages.
This understanding was ratified by Ruling 14/15 of the National School for Training and Improvement of Judges (Enfam),[10] approved by about 500 judges during the seminar The Judiciary and the new CPC, held from August 26 to 28, 2015, at the seat of the STJ itself.
In summary, we start from the premise that bringing suit in court involves risks, among them the burden of loss of suit. In this context, the procedural subjects, including the judge, have the duty to cooperate with each other to enable delivery of judicial relief (article 6 of the CPC).
On the one hand, it is incumbent on the plaintiff to prudently set the amount claimed for non-economic damages, under penalty of, failing to do so, bearing part of the burden for loss of suit. On the other hand, it is the judge's role, weighing the defendant's allegations to the contrary, to examine the reasonableness of the amount of compensation sought, taking into account the factual situation and the existing case law on the subject.
This is the co-participative and collaborative model of proceedings,[11] founded on the principles of legal security and due process of law provided for in article 5, XXXVI and LIV, of the Federal Constitution, which also lends itself to improving the case law.
Regardless of sympathy for one view or the other, the fact is that the CPC does not provide an express solution for the controversy. Considering that article 292, V, of the CPC deals specifically with actions for compensation based on non-economic damages, the best way to settle the issue might be to seek the adaptation of the procedural law through the ordinary pathway of the constitutional legislative process, through the popular participation of all interested parties.
Until this occurs, or the matter is submitted for judgment under the system of repetitive appeals provided for in articles 1036 et seq. of the CPC, the result of the judgment in the STJ will continue to be the target of reasoned criticism, especially in light of the robust case law and scholarly divergence on the subject.
[1] "In the action compensation of non-economic damages, the judgment at a lower amount than that requested in the complaint does not imply reciprocal loss of suit" (Special Court, decided on June 7, 2006).
[2] Article 292. The value of the cause shall be established in the complaint or counterclaim and shall be: (...) V - in actions for compensation, including those based on non-economic damages, the sum sought;
[3] In the appeal briefs, the appellant indicates violation of articles 186 and 927 of the Civil Code (CC) and of articles 85, paragraph 2, and 86 of the CPC.
[4] “An interesting position has been adopted by the case law regarding the action for compensation for non-economic damage. As the award of the amount of the compensation is of the judge's exclusive competence, the understanding of the Superior Court of Appeals has been fixed to the effect that, 'in actions compensation of non-economic damages, the judgment at a lower amount than that requested in the complaint does not imply reciprocal loss of suit’ (Precedent 326/STJ)." (THEODORO JÚNIOR, Humberto. Course on Civil Procedure Law. 56th ed. Rio de Janeiro: Editora Forense, 2015, p. 308).
[5] STJ, REsp 579.195-SP, opinion drafted by Justice Castro Filho, 3rd Panel, decided on October 21, 2003; TJMG, Motion for Clarification-Cv 1.0000.22.037448-2/002, opinion drafted by Appellate Judge José Augusto Lourenço dos Santos, 12th Civil Chamber, decided on September 2, 2022; TJSP, Civil Motion for Clarification 1000476-56.2017.8.26.0412, opinion drafted by Appellate Judge Coelho Mendes, 10th Chamber of Private Law, decided on February 5, 2019.
[6] "A problem that deserves careful analysis is that of a generic claim in actions for non-economic damages: should the plaintiff quantify the amount of the compensation in the complaint or not? The answer is in the affirmative: the claim in these lawsuits must be certain and determined, limiting the plaintiff in how much he seeks to receive as compensation for the non-economic damage he has suffered. Who, other than the plaintiff himself, could quantify the 'non-economic pain' he claims to have suffered? How could a stranger, and therefore unaware of this 'pain', assess its existence, measure its extent, and quantify it in money? The judge's job is to judge whether or not the amount requested by the plaintiff is due; it is not incumbent on him, without a provocation from the plaintiff, to say how much the amount should be. Furthermore, if the plaintiff requests that the judge determine the amount of the compensation, he will not be able to appeal decisions that, absurdly, set it at one Brazilian Real (R$ 1.00), since the claim would have been fully granted, with there being no way to find an interest on appeal. Article 292, V, of the CPC seems to go in this direction, by imposing as the amount in controversy the amount of the prayer for relief in actions for compensation, 'including those based on non-economic damage'. The illiquidity of the claim is only possible, in these cases, if the act that caused the damage may also have repercussions in the future, generating other damages (e.g.: a situation in which the non-economic damage is continuous, such as undue registration in personal credit history or continuous offense to one's image); then, one would apply subsection II of paragraph 1 of article 624, commented here. Outside this case, the formulation of an illiquid claim is unacceptable" (DIDIER JÚNIOR, Fredie. Curso de direito processual civil: introdução ao direito processual civil, parte geral e processo de conhecimento [“Course on civil procedural law: introduction to civil procedural law, general part and cognizance process”], 17th revised ed., expanded and current. Salvador : JusPodivm, 2015, p. 581).;
[7] TJRJ, Appeal 0002064-42.2017.8.19.0079, opinion drafted by Appellate Judge Alexandre Câmara, 2nd Civil Chamber, decided on September 16, 2020.
TJSP, Appeal 1002707-40.2016.8.26.0655, opinion drafted by Appellate Judge Antonio Rigolin, 31st Chamber of Private Law, decided on January 23, 2018. TJ-MG, Appeal 10000191312040001, opinion drafted by Appellate Judge Lílian Maciel, decided on January 20, 2020. TJ-DF, 0723140-23.2018.8.07.0001, opinion drafted by Appellate Judge Leila Arlanch, 7th Civil Panel, decided on July 24, 2019.
[8] STJ, AgRg no Ag 459.509-RS, opinion drafted by Luiz Fux, 1st Panel, decided on November 25, 2003
[9] Article 21. The decision that, in the administrative, oversight, or judicial spheres, orders the invalidation of an act, contract, adjustment, process, or administrative rule must expressly indicate its legal and administrative consequences.
[10] Enfam Ruling 14/2015: "In the event of reciprocal loss of suit, the difference between what was claimed by the plaintiff and what was granted, including with regard to awards of non-economic damages, shall be considered the defendant's economic benefit, for purposes of article 85, paragraph 2, of the CPC/2015" (emphasis added)
[11]DIDIER JR, Fredie "The three models of procedural law: inquisitive, dispositive, and cooperative." Revista de Processo: RePro, v. 36, n. 198, p. 213-225, Aug. 2011.
