This article will provide information on how to bring a legal action in the Brazilian small claim courts. We also give an outline about the definition of small causes according to the Brazilian law and described the steps of the process in the courts.
In Brazil, are considered small claims (pequenas causas, in Portuguese) the legal suits considered less complex to solve according to the law, involve low-value damage (up to 40 minimum Brazilian salaries or BRL 24.880) and does not require technical evidences or examinations to be processed. Some examples of small claims would be:
- Condo/Neighbors: conflicts between neighbors, problems with construction companies, damages to property:
- Violations of Consumer Rights: defective products, undelivered products, unfair charges, misleading advertising, improper registration in SPC/Serasa, problems with services such as cable TV, telephony, banking, insurance, pension plan regarding moral and material damage etc.;
- Traffic Issues: collisions, damages to property, moral and material damage etc.
- Service Providers: hired services not rendered, order for goods not delivered, defects in the services etc
- Financial Services: protest securities by mistake, improper registration in SPC/Serasa, unfair price increases, moral and material damage etc
- Collection of debts: nonpayment, promissory notes, contracts not fulfilled, returned checks, checks with deadline for submission expired etc
- Health plans: abusive charges, non provision of services, improper request of payment etc
- Disagreements between landlord and tenant in general
The Brazilian institution responsible to conduct the small claims is the Juizado Especial Cível (Special Civil Court), popularly known as Tribunal de Pequenas Causas or JEC. The Juizado Especial Cível is distributed in offices located in several cities throughout Brazil. At first instance, the attendance and services provided by JEC are free of charge.
It is important to notice that, in Brazil, the Juizado Especial Cível is highly sought by the citizens. So, the courts are crowded of cases in process, what can delay their solution. Therefore, it is always recommendable to try a personal agreement with the other party, before going to the small court.
How to bring claims to the small court
Only the private persons over 18 years old can run complaints in small claim courts, which means that companies of any kind can appeal to it. To initiate the procedure, the person who suffered the injury must make a request (oral or written) personally in the nearest office of the Special Civil Court.
The clerk will analyze the case and write the request for the action to be brought in the process. After the claim was registered, the department will mark the conciliation hearing and trial within 15 days.
While filing the request, it is necessary to present personal documents such as ID and CPF, and all the documents that characterize any evidence of the damage suffered as invoices, letters, photos etc.The larger the amount of documents presented, the better are the chances of winning the case. If thought necessary, the complainant may also call witnesses (at a maximum of three) to testify in his favor.
Foreigners will be required to present their passport or RNE and the documents that prove the injury suffered. It is not necessary to present the CPF. The Special Civil Courts have no customized service for foreigners, so the requests have to be all done in Portuguese.
For claims involving values up to 20 minimum salaries or BRL 12.440, it is not necessary to hire an attorney. But if one of the parties decide to be represented by an attorney, the others involved are required to do the same.
As for claims which value of damage is higher than 20 minimum salaries it is mandatory to present an attorney for all the parties involved.
On the day of the hearing, it is recommended to arrive at least half an hour earlier, as the delay will result in the extinction of the process. It is also advisable to attend the court in formal clothes, avoiding sportswear, slippers etc.
In the first hearing, the mediator (usually a lawyer does this role) will try to manage an agreement between the parties, showing them all the risks and consequences of continuing the process in court. If the agreement is accepted by both parties, then the case is closed. If conciliation fails, the case will be transferred to a judge and will go to trial in another hearing.
During the trial, the judge will check the original documentation brought by the complaint to prove what he is asking and also ask him to tell his reasons and arguments. The judge will also hear the testimonies of the parties. After that he will utter a sentence at the time.
After the sentence, the parties have up to 10 days to appeal for three judges of second instance. In second instance, it is mandatory for both parties to be represented by attorneys. Therefore, in most cases, the parties give up appealing and abide by the judge's decision.
If the second instance's decision was still not satisfactory, the parties can appeal to the Supremo Tribunal Federal (Supreme Court) but only if they demonstrate that a direct violation of the Federal Constitution has occurred. It is not possible to appeal the Supreme Court's decision.
Cases that cannot be processed in small claim courts
Some causes are not allowed to be presented in the Juizado Especial Cível, even if they fit into the limited value of 40 minimum salaries. That will be the causes regarding:
- Labor suits
- Custody of children
- Tax matters