Rescissory action due to mistake of fact: premises, requirements and practical application

Rescissory action due to mistake of fact: premises, requirements and practical application

The rescissory action seeks to overturn a final judgement. As a rule, the action must be brought within two years of the final decision issued in the case (art. 975 of the CPC/15)[1].

It is worth noting that the judgement in the action for rescission will not always lead to a retrial of the original case but may be limited to the nullity of the contested decision. This is the case, for example, when the cause of action for rescission involves the violation of res judicata (positive effects). Once the action for rescission is upheld to recognize the existence of res judicata, the challenged decision will be overturned, without the need for a new trial of the original case. In other words, there will be a judgement of rescission, but there will be no judgement of res judicata.

The action for rescission can be brought by whoever was a party to the proceedings or by their successor in title, whether universal or singular; by a legally interested third party; by the Public Prosecutor’s Office (if it was not heard in the proceedings in which it was obliged to intervene; or when the rescinded decision is the effect of simulation or collusion by the parties in order to defraud the law); and by whoever was not heard in the proceedings in which its intervention was mandatory.

The cases in which an action for rescission may be brought are exhaustive and are set out in art. 966 of the CPC.

The focus of this article will be on the acceptance of the rescission action due to error of fact (art. 966, VIII and § 1 of CPC/15), a claim that is sometimes used as an appeal in search of a new judgement on the case, rather than to demonstrate the existence of an error of fact. Therefore, analyzing its acceptance requirements, including in the light of case law, can help to understand the nature and scope of this specific action.

Before going any further, it’s worth noting that the CPC/73 provided for rescission actions for errors of fact when the error of fact resulted from “acts or documents in the case“. CPC/15, on the other hand, establishes that the error of fact must be “verifiable from an examination of the case file“. For some time now, the doctrine has pointed out that the wording of the repealed code “resulted from errors in the translation of art. 395, 4, of the Italian CPC, which ends up jeopardizing the very interpretation of the provision”[2].

It should be noted that the CPC/15 also condensed the two paragraphs of art. 485, IX, §§ 1 and 2, of the CPC/73 into just one, making adjustments and establishing that there is an error of fact when the challenged decision admits a non-existent fact or when it considers a fact that actually occurred to be non-existent. In both cases, it is essential that the fact does not represent a disputed point on which the judge should have ruled (art. 966, VIII, § 1).

But what is a mistake of fact?

In simple terms, an error of fact is an inattention on the part of the judge when examining the case file, which must be ascertained by the elements of the case itself (without the production of new evidence). In other words, it is not an error of qualification or valuation of the evidence. The action for rescission due to a mistake of fact is not a substitute for an appeal to discuss any error in iudicando after the final and unappealable decision[3], nor is it the appropriate way to “correct the alleged injustice of the decision, assess a misinterpretation of the facts, or re-examine the evidence produced in the case”[4] . Otherwise, anyone dissatisfied with the judgement could file a rescissory action[5].

In practice, the aim is to overturn a court decision that is the result of a mistaken understanding of the factual and evidentiary material. This is what happens, for example, when the decision “considers that there was a certain fact that there wasn’t, or that it ignored the occurrence of a fact that was actually found to have occurred“[6].

The doctrine suggests some situations of error of fact, when, for example, “the fact was evidenced in the case records, but was denied by the challenged decision; the decision stated that there is no material evidence, when it is attached to the case file; the decision considers a document to be true, the falsity of which is proven by other evidence in the case file.”[7]

To illustrate the error of fact, imagine the following situation: a decision rejects a claim for compensation for sums paid by one of the contracting parties, following the annulment of the respective legal transaction, stating that there were “other causes” (non-existent) for such payment, without even pointing them out, and also disregarding the lack of controversy on the point about the origin of the payment (express contractual clause). Now, if there were no other reasons for the payment (other than the contractual clause itself), the decision could not dismiss the claim for compensation on the grounds that the payment had occurred for other reasons. In this same hypothetical example, it would also be a mistake of fact for the court to rule that the payment was made purely at the discretion of the contractor, ignoring the fact that the amounts were only paid under a specific contractual provision.

It is important to note that the error of fact that serves as grounds for the action for rescission must be causally related to the final decision. As Alexandre Câmara points out, “the outcome of the case would have had to be different if the judging body had not had that mistaken perception of what was in the case file, and only then could the judicial pronouncement be admitted as rescindable.“[8]

Having understood the error of fact, it is now time to look at the other requirements to be met in order to bring this action for rescission:

1. the error of fact must be ascertainable by simply examining the evidence in the case records: the production of any evidence to demonstrate that the fact admitted by the judge did not occur or that the fact disregarded by the judge did occur is not acceptable in this case. In fact, item VIII of article 966 establishes that the error of fact must be “verifiable by examining the case records”. Therefore, it is necessary “that the evidence contained in the original proceedings is sufficient to prove the existence or otherwise of the fact“[9]. In case law, the STJ rejects many special appeals originating from actions for rescission on the grounds of error of fact when it considers that the challenged decision took into account “all the evidence in the case file”[10]. On the other hand, the STJ has already upheld an action for rescission on the grounds of error of fact because it considered that the contested decision did not take into account the plaintiff’s work permit attached to the case records (which proved a certain profession of the plaintiff). In the court’s view, if the work permit had been taken into account, the court would not have “judged in the way it did“[11]. In addition, the STJ has already upheld an action for annulment on the grounds of an error of fact on the grounds that the decision to annul, when assessing the legislation applicable to the death pension, considered “the date of the benefit granted to the deceased and not the date of his death, characterizing an error of fact capable of overturning the final and unappealable decision”[12].
2. No controversy over the fact: this means that the fact cannot represent a controversial point on which the judge should have ruled. Furthermore, the existing fact that the decision ignored, or the non-existent fact that the decision considered to have occurred, cannot have been the subject-matter of controversy between the parties. This can occur, for example, when the fact was not alleged by either party or when it is an uncontroversial fact (alleged by one party and not disputed by the other)[13]. The STJ usually dismisses actions for rescission on grounds of error of fact when it realizes that the discussion involves controversial issues[14].
3. no judicial pronouncement on the fact: the challenged decision cannot have actually pronounced on the fact. Therefore, if the judge referred to a certain document but, interpreting it, considered that it was not sufficient to prove the fulfilment of the respective obligation, there is no case for rescission, even though the decision may eventually be considered unjust. On the other hand, if the judge did not take into account a document signed by the creditor giving discharge, ordering the defendant to pay the debt again, this opens the way to a rescission action[15]. The STJ also relies on this requirement to dismiss some actions for rescission on the grounds of error of fact[16].

In short, the doctrine usually points to four requirements (which must be combined) for bringing an action for rescission on the grounds of error of fact, namely: a) the judgement must be based on a mistake of fact (and there must also be a causal link between the mistake of fact and the conclusion of the person who issued the decision that is to be overturned[17]); b) the mistake of fact must be ascertainable by simply examining the evidence in the case file; c) there must have been no dispute over the fact; and d) there must have been no effective judicial pronouncement on the fact.

The decisions cited in this article show that the STJ relies on the aforementioned requirements to reject or uphold actions for rescission, which highlights the need for the plaintiff to prove the presence of the aforementioned admissibility conditions in the initial petition, in a didactic and reasoned manner.

[1] When the action for rescission is based on new evidence (art. 966, VII), the initial term will be the date of discovery of the new evidence, observing the maximum period of 5 (five) years from the final judgement of the last decision handed down in the case (art. 975, § 2). On the other hand, in the event of simulation or collusion by the parties (art. 966, III), the time limit begins to run for the aggrieved third party and the Public Prosecutor’s Office, which did not intervene in the proceedings, from the moment they become aware of the simulation or collusion.

[2] BARIONI, Rodrigo. Some notes on the rescissory action in the draft of the new Code of Civil Procedure. Available at https://www2.senado.leg.br/bdsf/bitstream/handle/id/242954/000940002.pdf?sequence=3&isAllowed=y . Accessed on: 26.11.04. In the same vein ALVIM, Teresa Arruda; CONCEIÇÃO, Maria Lúcia Lins. Ação rescisória e querela nullitatis: semelhanças e diferenças. 3. ed. rev. atual. e aum. São Paulo: Revista dos Tribunais, 2022. p. 367.

[3] STJ, AgInt na AR 6601/DF, Rel. Min. Og Fernandes, First Section, DJe 16.04.2020.

[4] STJ, AgInt no AREsp 1000768/RS, Rel. Min. Maria Isabe Gallotti, Fourth Panel, DJe 07.12.2020. In the same vein CRAMER, Ronaldo. Art. 966. In: CABRAL, Antonio do Passo; CRAMER, Ronaldo (Coords.). Comments on the new Code of Civil Procedure. 2. ed. revised, updated and expanded. Rio de Janeiro: Forense, 2016, p. 1.422.

[5] RODRIGUES, Marco Antonio. Manual of appeals – Rescission action and claim. See STJ, AgInt no AREsp 2003594/SP, Rel. Min. Rel. Raul Araújo, Fourth Panel, DJe 29.06.2022.

[6] PARRO, Fabiana Monteiro. The error in the rescissory action. Dissertation (Master of Laws). University of São Paulo – USP. São Paulo, 2011. p. 97.

[7] ALVIM, Angélica A. Comentários ao código de processo civil. E-book. Editora Saraiva, 2017. Accessed on: 26 November 2024.

[8] CÂMARA, Alexandre Freitas. Ação Rescisória. Rio de Janeiro: Lumen Juris, 2007, p. 121.

[9] NEVES, Daniel Amorim Assumpção. Manual of Civil Procedural Law. Single volume. Salvador: JusPodivm, 2017, p. 1477.

[10] STJ, REsp 218.079/CE, Min. Rel. Hélio Quaglia Barbosa, Fourth Panel, DJe 28.05.2007.

[11] STJ, AR 972/SP, Rel. Min. Edson Vidigal, Third Section, DJ 19.02.2001.

[12] STJ, AR 4276/PB, Rel. Min. Jorge Mussi, Third Section, DJe 05.10.2018.

[13] BARBOSA MOREIRA, José Carlos. Comentários ao Código de Processo Civil. v. 5. Arts. 476 a 565. 12. ed. Rio de Janeiro: Forense, 2005, p. 149.

[14] STJ, AR 5.196/RJ, Rel. Min. Mauro Campbell Marques, First Section, DJe 19.12.2022.

[15] CÂMARA, Alexandre Freitas. Action for rescission. 3. ed. São Paulo: Atlas, 2014, p. 81.

[16] STJ, AR: 5748/ES, Rel. Min. Regina Helena Costa, First Section, DJe 30/05/2022. See also AgInt in AR 6654/DF, Reporting Justice Antonio Carlos Ferreira, Second Section, DJe 26.10.2020.

[17] DIDIER JR., Fredie Didier; CUNHA, Leonardo Carneiro da. Course in Civil Procedural Law: Means of Challenging Judicial Decisions and Court Proceedings. 19. ed. rev. atual. e aum. São Paulo: JusPodivm, 2022. p. 648.