3.7.1 Injunction
In Brazilian law, in order to avoid urgent and potentially harmful situations (in many such cases, the main action cannot be filed), injunctive reliefs, regulated by Articles 300–311 of the CPC, are available. In the LPI, this is specifically provided for in Article 209(1), which authorizes the granting of an injunctive relief even before the service of process to the opposing party.
Injunctive relief is granted when there is evidence of the likelihood of the right and the danger of damage or risk to the useful outcome of the case (Article 300 of the CPC). For the granting of interlocutory relief, the judge may, depending on the case, require a security interest or personal guarantee for compensating the damage that the other party may suffer. The security interest or personal guarantee may be waived if the economically disadvantaged party is unable to offer it (Article 300(1) of the CPC). Interlocutory reliefs may be granted before the final decision or after prior justification (Article 300(2) of the CPC). They may seek to anticipate the content of the final claim, but, in this case, they can only be granted when the decision’s effects are reversible (Article 300(3) of the CPC).
Interlocutory relief may be provisional, in which case it intends to ensure the useful outcome of the case. The interlocutory relief can be effected by means of an attachment, sequestration, listing of property, registration of protest against the disposition of property, or any other suitable measure to ensure the right (Article 301 of the CPC).
Regardless of the redress for procedural damage, a party is liable for the damage that the effectiveness of the interlocutory relief causes to the other party if:
I – the judgment is unfavorable to them;
II – the party fails to provide the necessary means for the service of process to defendant within 5 (five) days once the interlocutory relief has been obtained in advance;
III – the effectiveness of the measure in any legal case is ceased; [or]
IV – the judge accepts the claim of preemption or limitation of plaintiff’s claim. (Article 302 of the CPC)
The interlocutory relief may be simultaneous to the filing of the action. This is an interlocutory relief requested in advance. In this case, the complaint may be limited to the request for an interlocutory relief and to the indication of the final injunction request, showing the dispute, the right being pursued, and the danger of damage or risk to the useful result of the case (Article 303 of the CPC). If an interlocutory relief is granted:
I – the plaintiff must amend the complaint, complementing the arguments, attaching new documents, and confirming the final injunction request within 15 (fifteen) days or a longer period set by the judge [under the penalty of termination of the case without prejudice (Article 303(2) of the CPC)];
II – the defendant will be served process and notified to attend the conciliation or mediation hearing [if the judge so determines]; [and]
III – if the dispute is not resolved by the parties themselves, the term for answer will [begin]. (Article 303 of the CPC)
The interlocutory relief requested in advance becomes final if the decision granting it is not appealed (Article 304 of the CPC). In this case, the case is terminated (Article 304(1) of the CPC). Either party may request the unfiling of the case record in which this measure was granted, in order to provide evidence to the complaint of the action (Article 304(4) of the CPC).
The right to review, change or invalidate an interlocutory relief requested in advance that was not questioned and that was terminated and filed terminates after two years, counted from the moment the decision terminating the case is disclosed (Article 304(5) of the CPC). The decision granting the relief is not res judicata. However, the stability of the respective effects is only removed by a decision that reviews, changes or invalidates it, rendered in an action brought by one of the parties (Article 304(6) of the CPC).
A provisional injunction may also be requested in advance, indicating the dispute and its grounds, the right being pursued, as well as the possible damage or risk to the useful outcome of the case (Article 305 of the CPC). In this case, the defendant is served process and given five days to answer the request and indicate the evidence they intend to produce (Article 306 of the CPC). If the request is not answered, the facts alleged by the plaintiff are considered accepted by the defendant as having truly occurred, in which case the judge will make a decision on the provisional injunction within five days (Article 307 of the CPC).
Once the provisional injunction has been effected, the main request must be made by the plaintiff within 30 days. In this case, it is presented in the same case record as that in which the request for the provisional injunction was made, regardless of the advance of new procedural costs (Article 308 of the CPC). However, the provisional injunction granted in advance ceases to be effective if:
I – the plaintiff does not make the main request within the legal term;
II – the injunction is not effected within 30 (thirty) days; [or]
III – the judge dismisses the main request made by the plaintiff or dismisses the case without prejudice. (Article 309 of the CPC)
The rejection of the request for provisional injunction does not prevent the party requesting it from making the main request, nor does it influence the judgment of the latter, unless the reason for the dismissal is the recognition of preemption or limitation (Article 310 of the CPC).
Finally, there is also the possibility of granting interlocutory relief based on evidence. This is governed by Article 311 of the CPC. Such relief is granted, regardless of the demonstration of the danger of damage or risk to the useful outcome of the case, when:
I – there is an abuse of the right of defense or obvious dilatory intentions by the party;
II – the allegations can be actually evidenced only through documents and there is a theory confirmed in the trial of repeated cases or in a binding precedent;
III – it is a claim for repossession based on adequate documentary evidence of the deposit contract, in which case the order of delivery of the object under custody will be decreed, under penalty of fine; [or]
IV – the complaint is accompanied by sufficient documentary evidence of the facts constituting the plaintiff’s right to which the defendant does not present opposing evidence capable of generating reasonable doubt.
Sole Paragraph. In the cases indicated in items II and III, the judge may decide in advance. (Article 311 of the CPC)
Since the grant of interlocutory relief – whether of a provisional or anticipatory nature – requires evidence of the plausibility of the alleged facts, the judge may anticipate the production of expert evidence if the judge fears that the grant of the request may result in the risk of irreversible damage.79