Often, the creditor is unaware that they possess a document that could prove the existence of an obligation, but because it lacks executive force, it ends up dragging them into a long and exhausting collection process. However, Brazilian law has created a legal action designed to change this scenario: the summary judgment procedure.

The summary proceeding emerges as a procedural shortcut to transform written evidence into a judicial enforcement order, with the aim of enabling the creditor to satisfy their right more quickly and effectively. This action goes far beyond a procedural innovation, as it has become a strategic instrument of contemporary civil procedure. 

In this article, we propose to observe and analyze the new jurisprudential trends that have shaped the summary judgment procedure, revealing how this simple yet sophisticated mechanism has contributed to procedural efficiency and fostered fundamental guarantees, becoming relevant to all parties involved: creditors, debtors, and legal professionals.

Origin and Foundations of the Monitory Action

The origins of the summary judgment procedure date back to German and Italian procedural law, where the procedure was already used as a way to expedite the satisfaction of claims without a formal enforceable title, long before the introduction of the action into the Brazilian legal system. Here in Brazil, the 1973 Code of Civil Procedure introduced the institute (articles 1.102-A to 1.102-C), and the 2015 CPC improved it, consolidating it in articles 700 to 702.

As previously mentioned, the main basis for this action lies in the effectiveness of the process. By incorporating this procedure into the national legal system, the legislator seeks to construct an intermediate path between the standard declaratory action, which is usually slower, and the enforcement action, which, although generally faster, requires a judicial enforcement order. Thus, the summary judgment procedure emerges disruptively, as a hybrid procedure: cognitive in nature in its initial phase, but with the possibility of generating, through the uncontested summary judgment order, a judicial enforcement order. 

Article 700 of the Brazilian Code of Civil Procedure (CPC/2015) stipulates that a summary proceeding is appropriate whenever someone possesses "written proof without the force of an enforceable instrument." Therefore, it is clear that the plaintiff does not need a valid check or a contract signed with witnesses, but only a document that truly attests to the plausibility of the obligation being pursued, thus entrusting the judge with the analysis of its validity.

Evidentiary requirements and case law innovation

Without a doubt, when discussing summary proceedings, one of the most debated points is the concept of written proof. But not just any written proof, but rather written proof that lacks the force of an enforceable title.

This is because, traditionally, only documents signed by the debtor were admitted, such as private contracts without witnesses, but as the world has changed and evolved over the decades, so has jurisprudence. Nowadays, the Superior Court of Justice (STJ) has recognized that the concept of written proof should be interpreted broadly and flexibly, keeping pace with the transformations in social and commercial relations, emphasizing that robust proof should not be required, but rather documentation that is capable of convincing the judge.

To reinforce the swift and pragmatic nature of the summary proceeding, the Superior Court, in recent precedents, has admitted (i) expired checks and promissory notes, which have lost their negotiable instrument force, but remain valid documents to demonstrate the existence of the obligation (STJ Precedent 299); (ii) bank slips accompanied by invoices, as sufficient evidence to support the initial claim; (iii) electronic contracts and emails, provided they are accompanied by confirmation from the other party, as a valid form of written proof; and (iv) screenshots of conversations in messaging applications, when corroborated by other evidence.

All of this demonstrates how the Court has broadened the scope of the institution and reflected an adaptation of the Judiciary, also, to the digital reality, with regard to the admissibility of electronic evidence.

Defendant's defense, summary judgment proceedings, and the Public Treasury.

In a summary proceeding, the defense is made through summary judgment objections, which basically take the form of a defense, allowing the defendant to allege any matter of defense, from procedural defects to issues of merit, without the need to provide security for the judgment, unlike what occurs in objections to enforcement.

In this scenario, the Superior Court of Justice (STJ) has already expressed its understanding that the absence of objections automatically leads to the establishment of a judicial enforcement order (article 701, §2 of the Code of Civil Procedure), transforming default into a more intense procedural effect than the simple presumption of truth, which reinforces the expeditious nature of this procedure.

Still within the context of summary judgment proceedings, if the defendant files such proceedings and they are rejected, there is an award of attorney's fees; if no proceedings are filed, the automatic conversion also allows for attorney's fees, but at a reduced percentage. Thus, through the award of attorney's fees, the aim is to balance speed with encouragement of responsible defense.

It is worth highlighting that it is possible to file this type of action against the Public Treasury. This issue led legal scholars to question, for a long time, the compatibility of the procedure with the Public Treasury's prerogative of extended adversarial proceedings. However, the Superior Court of Justice (STJ) has come to admit it, provided that the requirements of Article 700 of the Code of Civil Procedure (CPC) are met. The only difference here lies in the execution phase, in which, even after the judicial enforcement order is issued, the Public Treasury must comply with the judgment via payment orders or small claims requests, in accordance with Article 100 of the Federal Constitution. This means that a summary judgment action is viable against the Public Treasury, but adapted to the special payment regime. Although characterized by its speed, the summary judgment action does not disregard procedural guarantees. 

Implementation and technological modernization

In the procedural order of this type of action, once the judicial enforcement order is established, the enforcement phase begins, during which new jurisprudential debates arise. 

One of the first issues addressed by the Superior Court of Justice was the definition of the statute of limitations for the enforcement of judgments in summary proceedings. In REsp 1.102.431/RS (Rel. Min. Luis Felipe Salomão, 4th Panel, DJe 09/22/2010), the Court established that the period is five years, pursuant to Article 206, §5, I, of the Civil Code, rejecting the application of ten-year or other different periods. This understanding has been reiterated in numerous precedents, consolidating legal certainty for creditors and debtors.

Another highly relevant debate concerns the use of atypical enforcement measures, as provided for in Article 139, IV, of the Brazilian Code of Civil Procedure (CPC/2015). The Superior Court of Justice (STJ), in rulings such as REsp 1.788.950/SP (Rel. Min. Luis Felipe Salomão, 4th Panel, DJe 23/04/2019), has admitted the adoption of measures such as the suspension of driver's licenses and the seizure of passports of debtors, provided that the principle of proportionality/reasonableness is observed and unjustified resistance to fulfilling the obligation is demonstrated. Jurisprudence is therefore moving towards legitimizing instruments of indirect coercion, not as punishment, but as a mechanism for the effectiveness of judicial protection.

Beyond coercion, the execution of summary proceedings has been keeping pace with the digital transformation of legal relations. Today, it is increasingly common for judicial enforcement orders arising from this procedure to be based on electronic documents. The Superior Court of Justice (STJ) has already recognized the validity of bank slips with invoices (AgInt in AREsp 1.590.995/SP, Rapporteur Justice Raul Araújo, 4th Panel, DJe 04/08/2020) and electronic contracts signed through digital certification as evidence suitable to support a summary proceeding (REsp 1.495.920/DF, Rapporteur Justice Paulo de Tarso Sanseverino, 3rd Panel, DJe 02/02/2016).

Legal doctrine also follows this trend. Fredie Didier Jr. and Leonardo Carneiro da Cunha emphasize that written evidence should be interpreted in a material, not formal, sense, so as to encompass digital documents capable of convincing the judge of the plausibility of the obligation. In short, the execution phase of a summary judgment action reveals a constantly evolving field: on the one hand, it guarantees the creditor effective tools for debt satisfaction; on the other hand, it adapts to new technological realities, recognizing that the "written evidence" of the 21st century is no longer limited to paper, but assumes multiple digital formats.

Ultimately, the summary proceeding represents not only a special procedure, but a symbol of the modernization of Brazilian civil procedure. While preserving speed and effectiveness, it remains faithful to the constitutional guarantees of due process and the right to a full defense. It is this combination that makes it, today, an indispensable tool for the practical application of law. Excellent, isn't it?

REFERENCES

BRAZIL. Code of Civil Procedure. Law No. 13.105, of March 16, 2015. Official Gazette of the Union, Brasília, DF, March 17, 2015.

BRAZIL. Civil Code. Law no. 10.406, of January 10, 2002. Official Gazette of the Union, Brasília, DF, January 11, 2002.

BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Brasília, DF: Federal Senate, 1988.

BRAZIL. Superior Court of Justice. Summary 299. A summary judgment action based on a time-barred check is admissible. Official Gazette, Brasília, DF, December 13, 2004.

BRAZIL. Superior Court of Justice. Special Appeal No. 1.102.431/RS. Rapporteur: Justice Luis Felipe Salomão. 4th Panel. Decided on September 8, 2010. Published in the Official Gazette on September 22, 2010.

BRAZIL. Superior Court of Justice. Internal Appeal in Special Appeal No. 1.590.995/SP. Rapporteur: Justice Raul Araújo. 4th Panel. Decided on June 23, 2020. Published in the Official Gazette on August 4, 2020.

BRAZIL. Superior Court of Justice. Special Appeal No. 1.495.920/DF. Rapporteur: Justice Paulo de Tarso Sanseverino. 3rd Panel. Decided on December 15, 2015. Published in the Official Gazette on February 2, 2016.

BRAZIL. Superior Court of Justice. Special Appeal No. 1.788.950/SP. Rapporteur: Justice Luis Felipe Salomão. 4th Panel. Decided on February 5, 2019. Published in the Official Gazette on April 23, 2019.

DIDIER JR., Fredie; CUNHA, Leonardo Carneiro da. Course on civil procedural law: the process of knowledge. 20th ed. Salvador: JusPodivm, 2023.

MITIDIERO, Daniel. Judicial protection and civil procedure. 2nd ed. São Paulo: Revista dos Tribunais, 2020.