by Marcelo Mazzola
December 23, 2024
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It is common sense that good faith should take centre stage in the contemporary procedural debate. This perception stems both from the fruitful doctrinal construction linked to the subject and its current normative conformation. Its interface with different parts of the procedural chessboard is also undeniable. Elements such as the prohibition of nullity of pocket and the incidence of logical estoppel are proof of this.
Particularly in the field of stability, it is essential that the parties have an exact understanding of what will or will not be consolidated, that is, what will or will not acquire immutability inside and outside the dispute, also so that procedural behaviour is guided by good faith (art. 5 of the CPC).
In this sense, within the scope of each case, the main issues decided and the respective reasons for the decision should be identified, separating from this decisional broth any comments made laterally (or en passant) in the decision. The latter should only be recognised as obiter dictum, so as to avoid unduly expanding the content of the decision, which would offend the protection of good faith and trust.
Regardless of the doctrinal controversy over the nature of res judicata (articles 5, XXXVI, of the Federal Constitution and 6 of the LINDB), the latter is usually understood as a quality or authority that emanates from a process[1] . From this notion – in the words of Botelho de Mesquita – come its immutability and its indisputability. As for the former, “in order for a judgement to be changed by another, the plaintiff, having been defeated in the first case, must initiate another case involving the same action. The consequence of the immutability of a final judgement consists precisely in the prohibition of bringing an action identical to another that has already been decided by a judgement that has the authority of res judicata.” On the other hand, “Indisputability operates in a different way. It operates in relation to any proceedings in which the decision of the plaintiff’s claim depends on the judgement of the prior issue that has been decided by main proceedings in previous proceedings between the same parties. Unlike immutability, indiscutability presupposes that the actions that are the subject of each of the proceedings are distinct[2] “.
Still on this point, it is important to identify the objective limits of res judicata, i.e. the extent of this authority or, in simple terms, the part of the decision that would be duly covered by res judicata once it has become final and unappealable. Article 503 of the CPC establishes that “the decision that judges the merits in whole or in part has the force of law within the limits of the main issue expressly decided“. In turn, article 504 states that “reasons, even if important in determining the scope of the final part of the judgement” and the “truth of the facts, established as the basis of the judgement” (items I and II) do not become res judicata.
There is no doubt, therefore, that what is affected by res judicata is the operative part of a given decision. On the subject, Alexandre Câmara points out that “the reading of the head of art. 503 and art. 504 (…) allows us to assert that only the operative part of the judgement is affected by res judicata. The fact is that, as stated in art. 503, what becomes res judicata is the decision, and, as seen above, the decisive content of the judicial pronouncement is found in its operative part. Thus, stating that the decision is res judicata is the same as stating that the operative part of the decision has the authority of res judicata. The grounds for the judgement, on the other hand, do not become res judicata. Of course, there is nothing in the legal text about whether or not res judicata applies to the report of the judgement. Forgive the obviousness: where nothing is judged, there is no res judicata.“[3].
In jurisprudence, the Superior Court of Justice (STJ) has already stated that: i) “the quality of immutability and indisputability of res judicata only applies to the operative part of the judgement, and does not extend to the reasons and grounds of the court decision”[4] ; ii) “according to art. 504, I, of the CPC, ‘the reasons, even if important in determining the scope of the operative part of the judgement, do not become res judicata‘”[5] ; and iii) “it is the operative part of the judgement that achieves the authority of res judicata; the motivation used, at most, can only be used to better understand the scope of the decision obtained. intelligence of arts. 468 and 469, I, of the CPC/1973 and 503, caput, and 504, I, of the CPC/2015“[6].
As you can see, the STJ recognises that mentions made laterally in the decision – which are not decisive for the formation of the decision – cannot be covered by res judicata[7] . It is worth remembering that the CPC/15 now provides for the possibility of any preliminary issue becoming immutable and indisputable even without the filing of an incidental declaratory action, provided that certain requirements are met (art. 503, §1 – the preliminary issue must have been decided expressly and incidentally in the proceedings and, “I – the judgement on the merits depends on that resolution; II – there has been prior and effective adversarial proceedings, which shall not apply in the event of default; III – the court has jurisdiction by reason of the matter and the person to resolve it as the main issue“). This, however, is not to be confused with any assertion made “in passing” in the context of the decision.
This whole discussion is not merely theoretical, but essentially practical. An example may help to illustrate this. Imagine that, in the case of an action for damages, the judgement (operative part) condemns the defendant to pay an illiquid sum, thus making it imperative that the judgement be subsequently settled. Suppose, however, that – in a certain section of the decision (e.g. in the reasoning chapter) – there is a mention of the apparent excess of the amounts claimed in the initial petition, and the decision becomes final.
In this case, it is clear that we cannot recognise the existence of any stability with regard to this comment made from the sidelines. Its functional and topographical insertion in the decision-making context prevents any kind of binding. After all, it is just a hypothetical and conjectural mention, which does nothing to detract from the fact that the actual (unchangeable) decision orders supervening liquidation.
Regarding obiter dictum, Michele Taruffo points out that they are “all those statements and arguments that are contained in the grounds of the judgement, but which, although they may be useful for understanding the decision and its reasons, do not constitute an integral part of the legal basis of the decision”[8] . Precisely because they are lateral arguments (said in passing), they are not covered by res judicata.
According to the STJ, “the obiter dictum contained in the judgement does not produce res judicata“[9] , and it is also true that “considerations included in the reasoning that are foreign to the parties’ postulations and that do not correspond to the operative part are not strictly speaking grounds, it being sufficient, for the delimitation of the meaning of the judgement, that they be understood as obiter dicta“[10].
Understanding this distinction is important. Firstly, because anyone who “participates in the process must behave in good faith” (art. 5 of the CPC), and obviously a mistaken perception of res judicata can generate unwanted behaviour in the process. And secondly, because the judicial decision itself must be interpreted “in accordance with the principle of good faith” (art. 489, § 3 of the CPC), which requires the judge to carefully analyse what has actually been decided and covered by res judicata.
In this context, it can be said that prior awareness of the dynamics of stability in the process dialogues directly with good faith and legal certainty[11]. In practice, the elements coexist in a kind of continuous feeding: it only makes sense to think about stability regimes if it is to maximise the protection of the court’s trust. Not least because litigants cannot be surprised by supervening interpretative changes that have a sneaky impact on their legal sphere .[12]
If res judicata consolidates respect for legal certainty and “lets the parties involved know what conduct they should follow, resolving past doubts and/or dictating behaviour for the future“[13] , it is essential to understand the objective limits of res judicata and identify obiter dictum, avoiding misunderstandings and misrepresentations capable of generating instability and a breach of trust.
[1] For Ovídio Baptista da Silva, “what becomes res judicata is only the declaration that the magistrate makes in the judgement that this or that precept of law has been applied, becoming the ‘law of the specific case’. In an action for judicial separation, it is not the modification (cutting off the marriage) or the creation of the state of being separated that will become immutable, but the declaration that the plaintiff had the right to obtain separation, because a legal rule recognised this right”. SILVA, Ovídio Baptista da. Civil Procedure Course. 5 ed. São Paulo: RT, 2001, p.498. In a different vein, MOREIRA, José Carlos Barbosa. Efficacy of the Judgement and Authority of the Judged Thing. In. Themes of Civil Procedural Law – Third Series. São Paulo: Saraiva, 1984.
[2] BOTELHO DE MESQUITA, José Ignacio. Res judicata. Rio de Janeiro: Forense, 2006. p.11-12.
[3] CÂMARA, Alexandre Freitas. Manual of Civil Procedural Law. 3 ed. Rio de Janeiro: GEN, 2024. ebook. We emphasise.
[4] STJ – REsp 2000438/PB, Rapporteur: NANCY ANDRIGHI, THIRD COURT, Publication Date: DJe 05/05/2023.
[5] STJ – EREsp 1799800, Rapporteur: Minister PAULO SÉRGIO DOMINGUES, Date of Publication DJ 07/06/2024.
[6] STJ – AgInt no AREsp 1298914/RJ, PRIMEIRA TURMA, Date of Publication: DJe 03/10/2022.
[7] STJ – AgInt no AREsp 1419498/PR, Rapporteur: Minister PAULO DE TARSO SANSEVERINO, THIRD COURT, Date of Publication: DJe 17/11/2020.
[8] TARUFFO, Michele. Precedent and jurisprudence. Revista de Processo no. 199. São Paulo: RT, September 2011, p. 145-146.
[9] STJ – EDcl no AgInt nos EDcl no AREsp 835285/DF, Rapporteur: Minister PAULO DE TARSO SANSEVERINO, THIRD COURT, Date of Publication: DJe 20/03/2018.
[10] STJ – REsp 1846719/RS, Rapporteur: Minister HERMAN BENJAMIN, SECOND COURT, Date of Publication: DJe 19/12/2019.
[11] CABRAL, Antonio do Passo. Res judicata and dynamic preclusions: between continuity, change and transition of stable procedural positions. 3. ed. Salvador: Juspodivm, 2018, p. 354-355.
[12] See, emphatically, the vote of Minister Luiz Fux in the judgement of RE 363889/DF, Rel. Minister Dias Toffoli, Full Court, Publication Date: 16/12/2011. Available at: https://www.stf.jus.br/arquivo/informativo/documento/informativo631.htm Accessed on: 05.11.24.
[13] CÔRTES, Osmar Mendes Paixão. Repetitive appeals, binding precedent and res judicata. Brasília: Gazeta Jurídica, 2018, p. 27.