In summary, motions for clarification do not alter the judgment . Therefore, the main purpose of such a motion is not primarily to change, but to clarify or supplement decisions that suffer from some defect.
According to the noble doctrine of Aguirre and Sá :
"Appeals are admissible against any decision and at any level of jurisdiction for the simple reason that the party has a right to a clear decision."
Therefore, the importance of the motion for clarification as a tool for guaranteeing fundamental principles of Brazilian law is undeniably evident.
When is a motion for clarification appropriate?
Initially, motions for clarification are appropriate when there is obscurity, omission, or contradiction in the judicial decision.
According to the Brazilian Code of Civil Procedure (CPC/2015), the grounds for filing a motion for clarification are:
"Article 1.022. Declaratory appeals are admissible against any judicial decision for..."
I – to clarify obscurity or eliminate contradiction;
II – to remedy an omission regarding a point or issue on which the judge should have ruled ex officio or at the request of a party;
III – Correct a material error.
Sole paragraph. A decision is considered to be omitted if:
I – fail to comment on a legal argument established in the judgment of repetitive cases or in an incident of assumption of jurisdiction applicable to the case under judgment;
II – engages in any of the conduct described in article 489, § 1.”
Thus, when judicial decisions omit issues raised by the parties, are unclear, make contradictory statements, or contain material errors, the interested parties may file a motion for clarification.
Furthermore, motions for clarification may be filed by either party within 5 days in order to clarify such points before the judge, justice, or minister who issued the ruling.
Similarly, it is noted that the legislators carefully stipulated in the opening paragraph that the embargo applies to "any judicial decision," thus ending any discussion about the admissibility of a declaratory appeal against an interlocutory decision.
What is the effect of a motion for clarification?
Initially, the effect of a motion for clarification is to prevent the judgment from becoming final.
Secondly, the motion for clarification interrupts the time limit for filing other appeals that might otherwise be applicable.
Thirdly, the possibility of some review of the decision is reopened , even if within the strict limits of the function of the motion for clarification.
In this way, motions for clarification have a devolutive effect , that is, they cause the matter to be re-examined by the same jurisdictional body.
Furthermore, in the words of the esteemed Minister Marco Aurélio:
"The motions for clarification do not constitute criticism of the judicial function, but rather serve to improve it."
In considering them, the body must do so with a spirit of understanding, bearing in mind that they constitute a genuine contribution from the party in favor of due process of law.
What should I do if the judge rejected my motion for clarification?
In summary, if the judge rejects the motion for clarification, the appeal may be filed with the court.
According to established case law:
" No motions for clarification are admissible against a decision that rejects, in clear and concise terms, and therefore without omission or contradiction that prejudices the party, the motions filed against the judgment."
If the judge rejects the motion for clarification, it is up to the aggrieved party to file an appeal so that the court, if it deems it necessary, may order the rejected clarification.” (RT 111/338).
How to file a motion for clarification?
First of all, the petition for clarification is usually straightforward.
Here, we will present a model that can be followed and consulted according to the book "Civil Practice" by Aguirre e Sá:
To the Honorable Judge of the … Civil Court of the Central District of São Paulo-SP
Case No. …
CONDOMINIUM X, duly identified in the above-mentioned proceedings, which it is bringing against CONDOMINIUM OWNER Y, also duly identified, respectfully appears before Your Excellency, through its undersigned attorney, pursuant to Article 1.022 et seq. of the Code of Civil Procedure, to file these DECLARATORY EMBARGOS against the judgment on page …, for the reasons of fact and law set forth below.
I – ADMISSIBILITY AND TIMELINESS
As can be seen from the pages …, the appellant was notified of the decision on …, and filed the appeal on …, thus fulfilling the 5-day requirement stipulated by law.
The issue raised in this appeal makes the filing of a motion for clarification imperative, given the omission. Indeed, this is what is stipulated in Article 1.022, II, of the Code of Civil Procedure.
II – GROUNDS FOR APPEAL
The plaintiff filed a lawsuit against the defendant seeking reimbursement for extraordinary expenses related to painting the building. In the aforementioned lawsuit, the plaintiff requested the inclusion of the penalty established in the condominium bylaws.
In delivering the respected judgment on page …, the Honorable Magistrate upheld the claim of the appellant, ruling in favor of the action and ordering the appellee to pay, but failed to specify whether the aforementioned sums included the fine stipulated in the condominium bylaws.
Therefore, given the aforementioned omission, there was no alternative but to file these motions for clarification.
The respected judgment on page [page number], which ruled in favor of the plaintiff, with all due respect, omitted a relevant issue raised by the Appellant, namely the inclusion of the fine stipulated in the condominium bylaws for cases such as the one described in the initial pleading.
Therefore, since there was an omission regarding a point on which the learned Magistrate should have ruled, these appeals are admissible, pursuant to Article 1.022, II, of the Code of Civil Procedure, to include in the judgment the fine stipulated therein, exactly as indicated in the initial petition and supported by Articles 1.336 et seq. of the Civil Code.
III – THE REQUEST
In light of all the above, the following is requested:
a) considering that all admissibility requirements have been met, the appeal should be admitted; b) the interruption of the time limit for filing other appeals;
c) that these appeals be accepted to remedy the omission pointed out, in order to include in the judgment the fine established in the condominium agreement;
d) an increase in attorney's fees pursuant to Article 85, § 11, of the CPC.
Terms in which approval is requested. Place and date.
ATTORNEY …
OAB …
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