The enforcement of responsibilities for actions and inactions is a method of enforcement designed to compel the debtor to fulfill an obligation that does not involve payment of money but rather involves performing an action or refraining from a specific behavior.
Regulated by the Civil Procedure Code (CPC) from Articles 814 to 823, this type of enforcement offers significant peculiarities for attorneys aiming to work effectively and strategically in this field.
This article explains how obligations to act and refrain from acting are carried out, providing examples, addressing key challenges, and offering practical advice for legal professionals.
What does the fulfillment of responsibilities to perform and refrain from doing entail?
The fulfillment of duties to perform or refrain from certain actions happens when there is a legal or non-legal document that requires the completion of a particular obligation.
- The obligation to act involves the debtor engaging in active actions, such as providing a service or delivering a product.
- The obligation not to do involves refraining from certain actions, such as stopping a behavior that infringes on others’ rights (for example, refraining from constructing in a restricted zone).
The goal of the execution is to ensure that the creditor enforces the obligation effectively, employing legal methods that depend on the complexity of the obligation.
Legal basis for carrying out actions and abstentions
Articles 814 to 823 of the CPC outline the requirements for fulfilling obligations to perform or abstain from certain actions. Some of the key provisions include:
When the execution involves a specific action, it must be carried out within the time frame set by the judge if no alternative deadline is specified in the enforcement order.
This device addresses the execution of required tasks.
The judge must make sure that the person carrying out the obligation is given sufficient time to fulfill it when deciding on the deadline.
If the executive title does not establish a timeframe, the judge will determine the deadline.
The lender can ask a third party to fulfill the obligation if needed, with the court’s approval, and the debtor will be responsible for the costs involved.
If the obligation is not fulfilled within the specified time frame, the party seeking enforcement may request that the obligation be fulfilled at the expense of the defaulting party or seek compensation for losses and damages as indemnity.
Losses and damages will be assessed during liquidation, after the collection of the appropriate amount.
The article enables the creditor to request the judge to enforce the obligation or seek compensation for losses and damages if the defendant fails to meet the obligation promptly.
It is crucial to convert the amount to ensure the creditor is adequately compensated for any delays or defaults.
The value for damages and loss compensation, if chosen by the exequent, will be determined in a settlement and can be billed as a fixed sum.
The Judge will listen to the parties within ten days after the benefit is fulfilled and will regard the obligation as fulfilled.
If there is any disagreement, the judge will make the decision.
After fulfilling an obligation, the Judge confirms that the performance has been completed by consulting with the parties involved.
If there is no challenge, the duty is seen as completed; if there is a challenge, the judge resolves the dispute.
Impagnation might entail deliberations on the standard or thoroughness of implementation, which could lead to fresh resolutions to guarantee absolute adherence to the commitment.
If the third contractor fails to fulfill the task within the specified time or does so inadequately, they can ask the court, within 15 days, for permission to finish or fix it at the contractor’s cost.
After listening to the contractor within a span of 15 days, the Judge must evaluate the required expenses and instruct the contractor to cover them.
This article discusses situations in which a third party hired to fulfill an obligation fails to meet their responsibilities adequately.
The lender can ask for authorization to finalize or rectify the implementation, with the expenses being shifted to the debtor.
The purpose of this mechanism is to safeguard the creditor by ensuring that the obligation is fulfilled without harm to them, while also holding the contractor accountable for any shortcomings of a third party.
These articles guarantee that duties are fulfilled properly and allow for penalties to be enforced in case of violation, safeguarding the creditor’s rights efficiently.
Final Delegations in CPC: Explanation and Steps
How is the fulfillment of a duty carried out?
Enforcing the requirement to act involves procedures that push the debtor to carry out specific actions outlined in a legal or out-of-court order.
This process is primarily governed by CPC Articles 815 to 818 with the aim of safeguarding the legitimacy of creditor rights.
The process for carrying out a required task involves the following steps:
Subpoena for debt
The borrower must respond to the obligation within the specified time indicated in the court order or decided by the judge.
It is crucial to ensure that the borrower fully understands their obligations.
The counting process starts from the knowledge of the debtor, following the principle of contradiction.
Third-party compliance
The creditor can ask for someone else to fulfill the obligation at the debtor’s expense if the debtor doesn’t meet the deadline and it is possible for another person to do so.
Article 817 of the CPC provides this option to ensure that the creditor is not affected by the debtor’s lack of action.
If a contractor fails to build a wall as agreed upon, the client can ask a judge to have another professional complete the task, with the contractor responsible for covering the expenses.
Fine being imposed
If the third party obligation cannot be met, the judge has the authority to impose a daily fine (astreintes) on the debtor to motivate compliance.
The fine should be fair and enough to motivate the debtor to fulfill their obligation, without unfairly benefiting the creditor.
Offenders can ask for a review of the fine amount if it surpasses reasonable limits, as per the STJ’s interpretation.
Transformation into losses and damages
If the debtor fails to fulfill the obligation within the specified timeframe, the creditor can demand that the obligation be converted into losses and damages as outlined in Article 816 of the CPC.
It is essential at this point to assess the harm suffered by the creditor, which will be compensated by the debtor.
If a company fails to deliver custom software on time and abandons the project, the customer can request compensation for losses and damages instead of the original service.
Compliance achieved using forceful methods
Other than using lifters, other forms of coercion can be employed, including blocking goods, limiting credit, and halting business operations, while ensuring proportionality.
These actions are intended to encourage the debtor to fulfill the obligation without having to immediately turn to losses and damages.
Adjudication: Operational Mechanism and Basic Guidelines
How is the obligation to refrain from acting carried out?
The purpose of a non-performance obligation is to stop or end a particular action by the person who owes it.
Creditor rights are safeguarded by these responsibilities, which aim to prevent them from being compromised by the debtor’s illegal behavior or oversights.
The process of execution involves various steps and options, as outlined here:
Notice to stop actions immediately
The initial action is to legally require the debtor to stop the behavior that is the focus of the obligation.
The deadline for compliance can be established by the executive authority or determined by the judge, as appropriate.
- The legal foundation under Art. 536, section one of the Civil Procedure Code empowers the judge to implement essential actions for enforcing court decisions, such as issuing immediate termination orders.
Coercive actions
The judge can use coercive measures to ensure the debtor fulfills the obligation if they do not comply voluntarily.
These actions consist of:
- Daily fees, also known as astreintes, are frequently used to compel debtors to fulfill their obligations by imposing penalties for each day of default.
- A manufacturer who is banned from using a specific brand and continues to do so may face daily fines until the violation stops.
- The judge can order the seizure of the debtor’s assets as security if needed.
- Measures such as seizing products, suspending advertising campaigns, or removing content may be implemented based on the circumstances surrounding a search and seizure or the discovery of an unlawful act.
- A manufacturer who is not allowed to use a specific brand but continues to do so may face daily fines until the violation stops.
Duty transformed into losses and harm
If the breach of the duty not to perform is permanent, the implementation can be changed to payment to the creditor.
- If the behavior has already caused permanent harm, like revealing sensitive information, the debtor might need to compensate for the harm done.
- Legal foundation: Article 823, paragraph one, and Article 497 of the Civil Procedure Code address the compensation of losses and damages and the conversion into monetary compensation.
Repairing damage is the responsibility.
The debtor might face accountability for any harm caused if they have infringed upon the creditor’s rights while continuing the wrongful behavior, in addition to stopping the conduct.
The obligation can turn into losses and damage if the author requests it or if obtaining specific protection is not possible or achieving a similar outcome through alternative methods is impossible.
The settlement process involves clearing the damages, and the debtor must pay the corresponding amount for the losses.
- Art. 499 of the Civil Procedure Code serves as the legal foundation for converting obligations into losses and damages as specified.
This step guarantees that the creditor is protected from any harm caused by the debtor’s actions, even if the obligation to refrain from certain actions has been met later on.
The creditor carrying out the subsidiary execution
The judge can allow the creditor to fulfill the obligation on behalf of the debtor in situations where specific actions are required, like removing an unauthorized building or deleting published content.
- The legal foundation is provided by Article 536, including the necessary actions for enforcing court decisions regarding non-performance obligations.
Judicial oversight and ending of the responsibility
After the conclusion of the proceedings, the Judge can set deadlines for the party to respond and confirm that the obligation has been met.
The judge will assess the validity of the claims and may impose additional sanctions if required, if the opposing party demands compliance.
Practical illustrations
If a service provider fails to install equipment in a building by the agreed deadline, the creditor can take legal action to have another provider complete the installation, with the costs covered by the original debtor.
A neighbor is legally prevented from constructing on the creditor’s property. The creditor can seek the demolition of the structure and prevent further construction through legal means, with penalties for non-compliance.
Master forensic practice with effective strategies: Practical advice for attorneys
Practical advice for running efficiently and avoiding distractions.
Definition of the obligation in the executive document is clearly stated.
The requirement should be clearly and objectively outlined in the official document to prevent any confusion that could impede its implementation.
Vague agreements on timelines or technical requirements can lead to disputes and delays in meeting them.
Personal responsibilities being carried out
Forcing the debtor to fulfill the obligation may not be possible when it requires special skills or a unique performance, like creating art or performing specialized surgery.
The duty could turn into losses and harm according to Art. 499 of the New CPC.
Fixing astrenders (coercitive mule)
Wearers play a crucial role in ensuring compliance with the obligation, but their attachment should follow proportional criteria.
Using too much can be seen as abusive, whereas insignificant amounts may not produce the intended outcome. The judge has the authority to adjust the penalty if it is excessive or if the debtor continues to neglect their obligations.
Illicit behavior coming to an end
Immediate action is often required to prevent or stop irreversible harm when fulfilling obligations to refrain from certain actions.
For instance, in situations involving trespassing or pollution, a court order may be necessary to stop the illegal activity immediately, with the threat of fines or other consequences.
Execution difficulties
- The debtor’s resistance may lead to the need for coercive measures or outside intervention to ensure that obligations are met, with the debtor bearing the cost.
- Proving that the debtor is not fulfilling their obligation to refrain from certain actions can be challenging, as it may involve specialized knowledge or ongoing supervision.
- In certain situations, the creditor might choose to replace the obligation with compensation instead, leading to potential disputes over the appropriate value of the indemnity.
Utilize technological resources
Utilizing technology tools can assist in saving time when developing procedural components. Dedicated platforms like Legal AI and procedural management software provide solutions for improving efficiency.
These tools help track deadlines, initial requests, disputes, opinions, contracts, and legal research, as well as assist in document management and provide predictive analysis for case progress, enhancing efficiency and precision in legal work.
These elements are crucial for successful and fair execution, while upholding the rights of all parties and adhering to the legal framework.
Ensuring that actions are effective, whether taken or not.
Enforcing responsibilities to act and refrain from acting is crucial in civil proceedings to uphold rights and ensure obligations are met.
This mechanism, according to CPC regulations, offers methods to enforce the debtor’s obligation, which can include coercion, involvement of a third party, or conversion to losses and damages.
Lawyers in this field need to understand the details of these procedures and look for effective solutions tailored to each case.
It is possible to guarantee that the creditor’s rights are protected efficiently and securely, achieving the goals of the civil procedure.
Explore our guide on Superinvite Law [Law 14.181/21] to understand its functioning.
What does the fulfillment of duties involve?
The requirement to fulfill a duty involves the debtor taking action, like providing a service or handing over a product (for example, constructing a building, creating a painting, or delivering an item).
What does the fulfillment of non-performance obligations entail?
The duty of non-doing involves abstaining from specific actions, like stopping a behavior that infringes on others’ rights, such as refraining from revealing confidential details or refraining from conducting business in a designated area.
