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Testimonial evidence as a mean of evidence of legal business in the New Code of Civil Procedure

Gláucia Coelho and Misael do Lago
Machado Meyer Advogados

Usually underestimated and dealt with reservation by judges and lawyers, oral depositions have always been treated with caution in judicial proceedings. The customary caution with which testimonial evidence is approached is understandable, since it is a naturally unstable proof, whose success (or failure) is closely dependable on the state of mind of the witness called to the stand - and, also, depends on several objective and subjective factors - elements that make oral testimony a genuine "wheel of fortune".

Considering this need for caution, the Article 400 of the 1973 Brazilian Code of Civil Procedure accepted the overall applicability of oral evidence, but made clear that there would be situations in which this kind of evidence would not be admitted, such as the example of guarantee contracts (Article 819, of the Brazilian Civil Code), insurance contracts (Article 758, of the Brazilian Civil Code) and marriage contracts (Article 1543, of the Brazilian Civil Code) - all of which may be proven only documentally.

In this same manner, the Article 401 of the 1973 Brazilian Code of Civil Procedure, replicating the text of the head section of Article 227 of the Brazilian Civil Code, provided that "evidence that is exclusively testimonial in nature is only admitted in contracts whose value does not exceed tenfold the highest minimum wage in force in the country at the time in which they are concluded." For contracts with a value that is higher than the legal limit, testimonial evidence should only be accepted subsidiarily, and only when there was a "beginning of written evidence," or in cases where obtaining documentary evidence would be morally or materially impossible (Article 402 of the 1973 Brazilian Code of Civil Procedure). This reinforces the idea that, in the previous procedural system, oral evidence was seen as being "second in magnitude," with limited probative value when used as a sole resource.

The New Brazilian Code of Civil Procedure, in turn, expressly revoked the head section of Article 227 of the Brazilian Civil Code, as set out in Article 1072 of the New Brazilian Code of Civil Procedure, which leads to the first impression that oral evidence must have been raised to a new role and may be admitted in order to provide proof of the existence of any legal transactions, even for significant and complex contracts.

Some legal scholarship advocates this understanding: revocation of the head section of Article 227 of the Brazilian Civil Code, on the reasoning that the New Brazilian Code of Civil Procedure raised the role of exclusively oral evidence. Once the objective limits imposed by the Brazilian Civil Code have been extinguished, exclusively oral evidence would be admissible to prove any legal transactions, regardless of the amount involved.

A more detailed analysis of the issue, however, reveals that the New Brazilian Code of Civil Procedure did not change the provisions of the sole paragraph of Article 227 of the Brazilian Civil Code, which states that "whatever the value of the legal transaction, oral evidence is admissible as secondary or complementary to evidence in writing." Today, therefore, not all legal transactions, no matter the value, admit, as a rule, exclusively oral evidence.

Thus, testimonial evidence shall be applicable only in a subsidiary manner, no matter the amount of the amount in controversy, except in the case of moral or material impossibility, as stated in Article 405 of the New Brazilian Code of Civil Procedure.

It is evident that, whatever the line of interpretation, the judge will be responsible for evaluating the evidence produced, revealing in a reasoned manner the grounds for the decision (Article 371 of the New Brazilian Code of Civil Procedure).

Appellate courts will have the task of defining the actual impact of the repeal of the head section of Article 227 of the Brazilian Civil Code by the New Brazilian Code of Civil Procedure, although it seems reasonable to state that, instead of assigning a special importance to testimonial evidence, the New Brazilian Code of Civil Procedure has restricted even further its use as to make proof of the existence of legal transactions.